Order passed by Commissioner under earstwhile provision of S. 84 not appealable to Tribunal u/s. 86 as this provision stands from 19-8-2009
CESTAT, BANGALORE BENCH
Nihon Trading Company
Commissioner of Service Tax
Final Order No. 52 of 2012
Stay Order No. 126 of 2012
Misc. Order No. 50 of 2012
CoD Application No. 361 of 2011
Stay Application no. 1763 of 2011
Appeal No. ST/2482 of 2011
January 19, 2012
P.G. Chacko, Judicial Member – There are two applications before us, both by the appellant, one for condonation of the delay of the appeal and the other for waiver and stay. These applications arise in an appeal filed against an order passed by the Commissioner as revisionary authority under Section 84 of the Finance Act, 1994.
2. Before the learned counsel moves the matter before us, the learned Additional Commissioner (AR) raises a preliminary objection. It is submitted that the appeal filed against the Commissioner’s “Review Adjudication Order” dated 24.3.2011 is not maintainable under Section 86 of the Act. The learned counsel for the appellant refers to the “Explanation” to Section 84 of the Act and argues that the legislative intent underlying this explanation is to enable the aggrieved party to file appeal to this Tribunal against the revisionary order passed by the Commissioner. It is argued that the provision cannot be considered in a manner which has the effect of denying appellate remedy to the party.
3. We have perused the relevant provisions of law and have considered the submissions. The impugned order was passed by the Commissioner under Section 84 as this Section stood prior to 19.8.2009. It was passed on 24.3.2011. With effect from 19.8.2009, the date on which a new appellate remedy was granted in the place of the erstwhile revisionary remedy against orders passed by Central Excise officers subordinate to Commissioner of Central Excise, Section 84 of the Act offers appellate remedy against an order passed by an Assistant Commissioner of Central Excise. The provision for revision of such an order by the Commissioner ceased to be in force on 19.8.2009. However, the “explanation” referred to by the learned counsel clarified to the effect that if the order of adjudication was passed by an officer subordinate to the Commissioner before 19.8.2009, the same shall continue to be dealt with by the Commissioner as if Section 84 as substituted with effect from the said date had not been substituted. This would mean that the Commissioner of Central Excise in this case was authorized by law to proceed to revise the order-in-original passed by the Assistant Commissioner on 28.5.2009. In other words, the order impugned in the present appeal was passed by the Commissioner within his jurisdiction. The above “explanation” to Section 84 does not mean anything more. Once the revisionary order was passed by the Commissioner on 24.3.2011, the question arises as to the remedy available to the aggrieved party. For this remedy, one has to look at Section 86 -of the Act. Sub-section (1) of Section 86 reads thus :-
“(1) Any assessee aggrieved by an order passed by a Commissioner of Central Excise under section 73 or section 83A, or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order”
It is clear from the above provision that no appeal would lie to this Appellate Tribunal under the above provision against an order passed by a Commissioner of Central Excise under Section 84 of the Act. The appellate remedy under Section 86 against such an order was taken away with effect from 19.8.2009. We have not found any explanation or other clarificatory provision appended to Section 86 so as to extend this remedy to a person aggrieved by an order passed under Section 84 (as this provision stood prior to 19.8.2009) by a Commissioner of Central Excise after 19.8.2009 as in the instant case. It would follow that the impugned order passed by the Commissioner of Central Excise under the erstwhile provision of Section 84 on 24.3.2011 on the strength of the aforesaid “explanation” is not appealable to this Appellate Tribunal under Section 86 as this provision stands from 19.8.2009.
4. The appeal is dismissed as not maintainable. The two applications also stand disposed of.