INANI CARRIERS Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal is directed against Order -in -Revision dated 7 -10 -2005.

(2.) THE relevant facts that arise for consideration are that the appellants were issued a show cause notice for short/delayed payment of service tax for the quarter ending September, December, 2000, March, June, September, and December, 2001 and quarter ending March, 2002. The said show cause notice was adjudicated by the adjudicating authority and vide his Order -in -Original dated 16 -10 -2003 confirmed the demand of service tax and imposed penalty Under Section 76 of the Finance Act, 1994. Aggrieved by the said order the appellants preferred an appeal before the Commissioner (Appeals) who vide his Order -in -Appeal dated 13 -10 -2004 upheld the order -in -original. The appellants discharged service tax liability and also deposited the amount of penalty. The Commissioner of Central Excise, Jaipur -II, in exercise of powers vested in him Under Section 84 of the Finance Act, 1994 issued a show cause notice to the appellants on 12 -8 -2005 indicating that, he would like to review imposition of penalty. The appellants resisted the show cause notice on the sole ground that the order -in -original had already merged with the order -in -appeal dated 13 -10 -2004 and hence on the date of issuance of show cause notice there was no order -in -original which could be reviewed by the Commissioner. The Commissioner did not accept the contention and enhanced the penalty to the equivalent amount of service tax. Hence, this appeal.

(3.) LEARNED Advocate appearing for the appellants submits that it is settled law that once an appeal has been filed against the order -in -original, and if it is decided by the Commissioner (Appeals) then doctrine of merger applies in this case. He did not rely upon any case law to drive home his point.