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TMI Blog2019 (1) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 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 wrongly sanctioned in the O-I-O. Appeal No. ST/2599/2011 is against adjustment of a refund sanctioned against the aforesaid demand. 2. Heard both sides and perused the records. 3. Ld. Counsel for the appellant submits that Section 84 of the Finance Act, 1994 confers on the Commissioner of Central Excise the power to call for the records of the proceedings in which the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Although Section 84 only says that no order can be passed by the Commissioner in respect of any issue, if an appeal against such orders is pending before the Commissioner of Central Excise (Appeals), but does not say that no order in Revision can be passed after the Order-in-Appeal has been passed by the Commissioner (Appeals), the Hon'ble High Court of Rajasthan in the case of Union of India vs. Inani Carriers [2009(13) S.T.R. 230 (Raj.)] held that once the Order-in-Appeal is passed, the original order 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 restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred an appeal to the first appellate authority who, vide Order-in- Appeal No. 17/2011 (T) ST, dt. 27.06.2011, concurred with the lower authority and rejected the appeal. Hence this appeal on the following grounds- (a) Adjustment of an amount of Rs. 38,27,626/- against the demand confirmed by O-I-R No. 2/2010, dt. 26.02.2010 was impermissible in law as the appellant had filed an appeal against this order and stay was also granted on 20.12.2012. (b) Refund of Rs. 3,60,097/- should not be rejected as the refunds were filed within one year from the end of the quarter in which the exports were effected. (c) The denial of refund of Rs. 3,01,656/- is also unsustainable on the ground that there is a discrepancy in the name of the Port in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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 Rs. 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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable to the cases where demand is confirmed and time limit is expired to file appeal against such order confirming the demand. In view of the above position, appropriation made in the present case against confirmed demand is upheld." 8. He would further submit that Order-in-Original was passed by Asst. Commissioner on 27.09.2010, after asking appellant if they have filed appeal against Order-in-Revision confirming the demand and having received no response. The Order-in-Original was passed on 26.02.2010 and since six months had expired from the date of the Order-in-Revision on 25.10.2010, (in terms of the Board's instructions) the refund was appropriated. He draws the attention of the Bench to the appeal No. ST/2530/2010 along with sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n- Appeal has been passed, the original order ceases to exist as it merges with the Order-in-Appal and therefore no portion of that original order can be revised. In this case, since the Commissioner (Appeals) has passed Order-in-Appeal, the Commissioner could not have, thereafter, passed an order in revising the Order-in-Original passed by the Asst. Commissioner. The Order-in-Revision No. 2/2010 is therefore unsustainable and needs to be set aside and we do so. 11. With respect to the appeal No. ST/2599/2011, we find that at the time of passing the order, no appeal was filed by the appellant against Order-in- Original No. 2/2010 ST, dt. 26.02.2010. The Order-in-Original adjusting the amount was passed on 27.09.2010 and the appeal has been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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