TMI Blog2019 (1) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... d not submitted any documents to show that an appeal has been filed against Order-in-Original No. 2/2010 ST, dt. 26.02.2010. However, we have now set aside Order-in-Original No. 2/2010 ST, 26.02.2010 in appeal No. ST/2530/2010. Therefore, the amount of refund so adjusted is now payable to the appellant. Appeal disposed off. - Appeals No. ST/2530/2010, ST/2599/2011 - A/30001–30002/2019 - Dated:- 2-1-2019 - Mr. M.V. RAVINDRAN, MEMBER (JUDICIAL) And Mr. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri B.G. Chidananda Urs, Advocate for the Appellant. Shri C. Mallikharjun Reddy, Superintendent for the Respondent. ORDER Per: Mr. P.V. Subba Rao 1. These two appeals are filed by the same appellant and issues therein are linked to each other and hence are being disposed of together. Appeal No. ST/2530/2010 is filed by the appellant challenging the Order-in-Original (Revision) No. 2/2010 (ST), dt. 26.2.2010 passed by Commissioner of Customs Central Excise, Tirupati under section 84 of the Finance Act, 1994, revising the Order-in-Original No. 03/2008-ST (Refund), dated 14.10.2008 passed by the lower authority and demanding from the assessee the amount supposedly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by lower authority merges with it and ceases to exist. Thereafter the Commissioner cannot pass an order in revision under section 84 against the order which has been so merged. 4. Ld. DR would submit that Section 84 only restricts the powers of revision of the Commissioner if the issue is pending before Commissioner (Appeals). In this case what was pending before the Commissioner (Appeals) was only an appeal with respect to the amount which was rejected by the lower authority and what was revised by the Commissioner was the issue of the amounts sanctioned by the lower authority, which is a separate issue. He would argue that two issues are separate, though they form part of the same Order-in-Original passed by Asst. Commissioner. Therefore, the issues can be vivisected and the Commissioner was correct in revising the order. 5. Appeal No. ST/2599/2011 pertains to the refund claim under Notification No. 17/2009-ST, dt. 07.07.2009 submitted by appellant. The Asst. Commissioner vide his Order-in-Original No. 22/2010, dt. 27.09.2010 sanctioned it partly and of the sanctioned amount, an amount of ₹ 38,27,626/- was appropriated against the demand confirmed by the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the Port were not matching and hence refund claim was correctly rejected on this ground. With respect to the adjustment of ₹ 38,27,626/- against the confirmed demand passed in O-I-O No. 2/2010, it is his submission that on the day the Assistant Commissioner passed the order making the adjournment, the appellant had not submitted any evidence to show that appeal has been filed against the confirmed demand before CESTAT and hence the adjustment was done correctly. He would draw the attention of the Bench the para 12 of the Order-in-Appeal No. 17/2011(T)ST, dt. 27.06.2011, which reads as follows- As regards to appropriation of ₹ 38,27,626/- which is sought to be recovered pursuant to the order of the Ld. Commissioner vide OIO No. 2/2010-ST, dt. 26.02.2010, it is seen from the record that there is o proposal for such recovery in the show cause notice under reference. However, on perusal of case record there is nothing in the record suggesting that the appellants have filed any appeal in the Hon ble Tribunal against this order and any stay was granted. On the other hand it is seen from the impugned order that before ordering for appropriation of this amount from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipt stamp of the Tribunal on the face of the appeal that was filed on 08.10.2010 before CESTAT, Bangalore after the Asst. Commissioner has passed the refund order adjusting the amount. He would, therefore, argue that the Asst. Commissioner was correct in passing the order and the first appellate authority was correct in upholding the same. 9. We have considered the arguments made on both sides. Insofar as Appeal No. ST/2530/2010 is concerned, we find that Hon ble High Court of Rajasthan in the case of Union of India vs. Inani Carriers (supra) has, after framing following substantial question of law, held in favour of assessee- Whether in the facts and circumstances the Commissioner of Central Excise could exercise his power of revision under Section 84 of the Finance Act, 1994 to the extent the order of adjudicating authority was found to be erroneous by him and about which no appeal lay at the instance of Revenue notwithstanding that to the extent the assessee was aggrieved, he had preferred the appeal and the order in appeal has been passed. 10. This decision of Hon ble High Court that the order cannot be vivisected and one part of it revised notwithstanding the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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