SMP STEEL CORPORATION Vs. CCE

JUDGEMENT

(1.) FOR the reasons recorded below, I waive predeposit of Rs. 1,95,636/ - and proceed to decide the appeal itself at this stage, with the consent of both sides, as the issue in dispute stands settled in favour of the assessees by the decision of Hon'ble High Court of Rajasthan and decision of the Tribunal.

(2.) The adjudicating authority had imposed penalties under the provisions of Section 76, 77 and 78 of the Finance Act, 1994, upon the assessees who challenged the same by filing appeal before the Commissioner (Appeals), who vide his order dated 25.02.10, set aside the penalties. In the mean while, a Show Cause Notice proposing revision of the order of the adjudicating authority was issued in March, 2009 and Revision Order came to be passed in June, 2010, subsequent to the order of the Commissioner (Appeals) setting aside the penalties. It is clear from Section 84(4) that power of revision cannot be exercised in respect of any issue if an appeal is on such issue is pending before the Commissioner (Appeals). In this case, not only there was an appeal pending before the Commissioner (Appeals), but before passing of the revision order, which is challenged by the appellants, but the appeal has been decided by the Commissioner (Appeals). Hence, the impugned order is bad in law as held by the Hon'ble High Court of Rajasthan in UOI v. Inani Carriers : 2009 (13) STR 230 (Raj.), which has been followed by the Hon'ble Tribunal in Jindal & Power Ltd. v. CCE, Raipur : 2008 (10) STR 270 (Tri. -Del.). Following the ratio of the above decisions, I set aside the impugned order and allow the appeal.