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2010 DIGILAW 550 (KAR)

Chief Commissioner v. TNT India Pvt.

2010-04-16

B.V.NAGARATHNA, K.L.MANJUNATH

body2010
Judgment :- Nagarathna, J. The revenue has preferred this appeal by challenging the order dated 28.11.2006 passed in Final Order No. 1947/2006 by CESTAT at Bangalore. 2. The facts leading to the filing of this appeal are that the respondent which is a company engaged in Door-to-Door International Courier Service had sought a clarification from the office of the Commissioner of Service Tax by its letters dated 20.3.2002 and 8.10.2004 regarding leviability of service tax in respect of Door-to-Door International Courier Service. The then Commissioner took a view that the said service did not constitute a taxable service and accordingly, a communication was issued to the respondent on 23.12.2004. Subsequently, it was found by the Department that the said communication was contrary to the Board’s Circular F.No.341/43/96-TRU dated 31.10.1996 and therefore, a letter C.No.IV/16/38/2005 ST.Tech dated 9.1.2006 was issued informing that the clarification issued in letter dated 23.12.2004 was contrary to the legal provision and therefore, void abinitio. Aggrieved by the letter dated 9.1.2006, the respondent-assessee filed an appeal before the CESTAT which by its Final Order No.1947/06 dated 28.11.2006 held that the letter dated 9.1.2006 is an order and therefore, appellable and held that since the rights of the assessee were altered without following the due process of law, the same was bad in law and accordingly, allowed the appeal by setting aside the order dated 9.1.2006.The same is questioned in this appeal by raising the following substantial questions of law: 4.1 Whether the CESTAT is legally right in coming to the conclusion that the letter C.No.IV/16/38/05 S.T.Tech dated 09-01-2006 written by the Commissioner of service tax is an “order” and therefore appealable under section 86 even when the said letter/order is not passed under sections 73, 83A, 84 of Finance Act, 1994? 4.2 Whether “International Freight” activity of the assessee fall under entry in section 65 (105) (f) of Finance Act, 1994 as clarified in Board’s Circular F.No.341/43/96 TRU dated 31-10-1996 and therefore Service Tax is attracted? 3. We have heard Sri.C.Shashikantha, learned counsel for the appellant and Sri. K.S.Ravishankar, learned counsel for the respondent and perused the material on record. 4. 4.2 Whether “International Freight” activity of the assessee fall under entry in section 65 (105) (f) of Finance Act, 1994 as clarified in Board’s Circular F.No.341/43/96 TRU dated 31-10-1996 and therefore Service Tax is attracted? 3. We have heard Sri.C.Shashikantha, learned counsel for the appellant and Sri. K.S.Ravishankar, learned counsel for the respondent and perused the material on record. 4. It is contended on behalf of the Revenue that the appeal filed by the respondent before CESTAT was not maintainable inasmuch as the letter dated 9.1.2006 was only a clarificatory letter and that no powers of the Commissioner under Section 73, 83A, 84 or 85 of the Finance Act were exercised. In order that Section 86 has to be made applicable, there must be an order under Sections 73, 83(a), 84 or 85 of the said Act and that in the instant case, there was no such order passed by any of the officers and therefore, the tribunal was not right in holding that the appeal was maintainable and also that the letter dated 9.1.2006 was an order. In support of his submission, he has relied upon certain decisions. He has also stated that in view of the circular dated 31.10.1996, the service rendered by the assessee is a taxable service and therefore, the tribunal ought to have appreciated as to under what circumstances, the initial letter dated 23.12.2004 was held to be void abinitio and a fresh letter dated 9.1.2006 was issued and that the same could not be a subject matter of appeal before the CESTAT. He, therefore, submitted that the substantial questions of law raised in this appeal have to be answered in favour of the revenue by setting aside the order of the tribunal. 5. Per contra, it is submitted on behalf of the respondent that the appeal filed before the tribunal and the same was maintainable in view of the procedure envisaged under Section 84 of the Finance Act, 1994 was not complied with by the Department before passing the order dated 9.1.2006 and that the order impugned before the tribunal was in fact an order under section 84 of the said Act and not just a letter or a communication. That the order makes it clear that the entire issue has been decided behind the back of the respondent-assessee after initially holding that the service rendered by the respondent was not subject to service tax. That without following the due procedure under Section 84, the order has been passed and therefore, the tribunal was justified in setting aside the said order in an appeal filed under section 86 of the said Act. He has also stated that the Commissioner had to give an opportunity to the respondent before revising his opinion and holding that the service rendered by the respondent was a taxable service. Be that as it may, without issuing a show-cause notice, making a demand for the recovery of the service tax, the order dated 9.1.2006 simply stated that the tax liability had to be paid immediately thereby by passing the entire gamut of procedure envisaged under the said Act. Therefore, the CESTAT was justified in setting aside the order dated 9.1.2006 which does not call for any interference in this appeal. During the course of arguments he has also submitted that the relevant records which led to the change in the opinion of the department regarding the taxability of the service of the respondent, which documents have been obtained by the respondent under the Right to Information Act. He has also brought to our notice that the order annexed by the department in the memorandum of appeal at Annexure-A has a footnote which is an incidental order and direction given to the Assistant Commissioner of Service Tax, Division-2 which is not reflected in the order communication to the respondent and under the circumstances, the respondent was justified in filling an appeal before the CESTAT seeking quashing of the order dated 9.1.2006. 6. During the course of submissions, he has drawn out attention to Sections 86 and 65 (121) of the Finance Act, 1994, dealing with service tax and also Section 2(a) and (b) of the Central Excise Act. 7. Having heard the counsel on both sides and on perusal of the material on record, the points that arise for our consideration are as follows: i) Whether the tribunal was justified in holding that the appeal filed by the respondent-assessee was maintainable as the communication dated 9.1.2006 was an order within the meaning of Section 86 of the Finance Act 1994? ii) If the answer to point No. 1 is in the affirmative, whether the order of the tribunal impugned in this appeal calls for any interference? 8. Before answering the said points, it is necessary to extract the Communication dated 9.1.2006 vide Annexure-A: “OFFICE OF THE COMMISSIONER OF SERVICE TAX: 16/1, S.P. COMPLEX, LALBAGH ROAD: BANGALORE-560 027. C.NO.IV/16/38/05 S.T.Tech. dated:09.01.2006 To M/s T N T India Pvt.Ltd., 82/1, Richmond Road, Bangaore-560 025 Sirs, Sub: Levy of Service Tax on Door-to-Door International Courier Service-reg. Please refer to this office letter of even No.dated 23.12.2004, on the above subject. This issue has been re-examined in accordance with legal provisions. 2. In the door-to-door international Courier Service, though the documents, goods or articles are delivered abroad, the service is rendered to a person located or resident in India and the charges towards service are paid by the person located or resident in India. In view of the above, the subject service is leviable to Service Tax. The correctness of position of law indicated above has been confirmed by the Ministry of Finance, Government of India in Circular F.No.341/43/96-TRU dated 31.10.1996.” 3. The clarification issued in this office letter of even no.dated 23.12.2004 is contrary to the legal position stated above and accordingly, the said clarification is ab initio void and hence nullified. Your are requested to discharge proper Service Tax liability on the subject service during the period immediately. Yours faithfully, Sd/- (S.S.LENKA) COMMISIONER. Copy to the Assistant Commissioner of Service Tax, Dn. II. For information and necessary action. He is directed to issue SCN immediately (partly should be asked to show cause to the Commissioner because the tax involvement is more than Rs.20 lakhs) for recovery of Service Tax interest from the above mentioned service provider. Action taken in this regard shall be reported to this office within 7 days from the receipt of this letter. Sd/- (S.S.LENKA) COMMISSIONEER. It is also necessary to extract the very same order dated 9.1.2006 which was actually communicated to the respondent: “OFFICE OF THE COMMISSIONER OF SERVIE TAX: 16/1, S.P.COMPLEX, LALBAGH ROAD: BANGALORE-560 027. C.NO.IV/16/38/05 S.T.Tech. dated:09.01.2006 To M/s T N T India Pvt.Ltd., 82/1, Richmond Road, Bangalore-560 025 Sirs, Sub: Levy of Service Tax on Door-to-Door International Courier Service-reg. Please refer to this office letter of even No.dated 23.12.2004, on the above subject. This issue has been re-examined in accordance with legal provisions. 2. C.NO.IV/16/38/05 S.T.Tech. dated:09.01.2006 To M/s T N T India Pvt.Ltd., 82/1, Richmond Road, Bangalore-560 025 Sirs, Sub: Levy of Service Tax on Door-to-Door International Courier Service-reg. Please refer to this office letter of even No.dated 23.12.2004, on the above subject. This issue has been re-examined in accordance with legal provisions. 2. In the door-to-door international Courier Service, though the documents, goods or articles are delivered abroad, the service is rendered to a person located or resident in India and the charges towards service are paid by the person located or resident in India. In view of the above, the subject service is leviable to Service Tax. The correctness of position of law indicated above has been confirmed by the Ministry of Finance, Government of India in Circular F.No.341/43/96-TRU dated 31.10.1996. 3. The clarification issued in this office letter of even no. dated 23.12.2004 is contrary to the legal position stated above and accordingly, the said clarification is ab initio void and hence nullified. Your are requested to discharge proper Service Tax liability on the subject service during the period immediately.” Yours faithfully Sd/-(S.S.Lenka) (COMMISSIONER) 9. The order dated 9.1.2006 stated that the earlier office letter dated 23.12.2004 was void abinitio. The letter dated 23.12.2004 reads as follows: “OFFICE OF THE COMMISSIONER OF SERVICE TAX SERVICE TAX COMMISSIONERATE: 16/1, S.P.COMPLEX: LALBAGH ROAD: BANGALORE-560 027 C.NO.IV/16/38/2004 ST Tech Date: 23.12.2004 To M/s. TNT India Private Limited 82/1, Richmond Road BANGALORE-560 025. Sir Subject:- Clarification on applicability of Service Tax in respect of Door-to-Door International Freight. Reg Please refer to your letter Ref. No. BLH/LEG/ST/02/63 dated 20.03.2004 and 8.10.2004, on the above subject. 2. The activity mentioned at Sl.No.2, of you letter referred above does not appear to come under the preview of Service Tax.” Yours faithfully Sd/- (V.P.C. RAO)ADDITIONAL COMMISSIONER 10. The said clarification was pursuant to letters dated 20.3.2002 and 8.10.2004 written by the respondent-assessee. The Commissioner of Service Tax and the Commissioner of Central Excise respectively. The letter dated 8.10.2004 reads as follows: TNT India Private Limited October 8, 2004 Registered Office 82/1, Richmond Road Bangalore-560 025 Tel: +91 80 51248341 Shri Subhash Chander Fax; +91 80 22292227 Commissioner of Service Tax E-mail : tntbir@tnt.com Service Tax Commissionerate www.tnt.com No.16, S.P.Complex, V Floor Lalbagh Road Bangalore-560 027 Dear Sir, Subject: Clarification on applicability of Service Tax in respect of Door to Door International Freight Ref. 1. 1. Our letter dated 20/03/2002 to the Department. 2. Our discussions with you on 4th October, 2004 Further to our discussions on 4th October, 2004 during the Advisory Committee Meeting, we are enclosing herewith copy of our letter dated 20/03/2002 addressed to the Commissioner of Central Excise, Bangalore requesting for clarification on applicability of service tax in respect of door to door international freight. As informed to you in person we have till date not received any response to the letter or any clarification from the department. We request you to grant us a personal hearing to enable us to put forth out views and seek your clarification on the applicability of service tax in respect of door-to-door international freight.” Thanking You, Yours faithfully For TNT INDIA PRIVTE LIMITED Sd/-B.K.PANDURANGA Country Legal Counsel & Company Secretary Encl: as above 11. On a perusal of the relevant records furnished by the learned counsel for the respondent-assessee obtained under the Right to Information Act, it is seen that in response to the clarification sought by the assessee, the Additional Commissioner before is suing letter dated 23.12.2004 has noted that the respondent-Assessee is not covered under “Cargo Handling Service” and that it is further noted as follows: “Before giving clarification we may ascertain the procedure followed in other Commissionerate (Madras, Mumbai)” The same is dated 16.12.2004. On the same date it is also noted that the above suggestion is not necessary and on 23.12.2004, the letter to the assessee was put up for approval and on the same date, the letter extracted above was approved. Thereafter, the Commissioner of Central Excise wrote to the Commissioner of Central Excise wrote to the Commissioner of Service Tax on 17.10.2005 to the effect that the matter has to be re-examined and appropriate necessary action as deemed fit for safeguarding the revenue has to be taken. 12. Subsequently, on 22.12.2005, the Commissioner wrote to the Chief Commissioner Central Excise and Service Tax that in view of board’s circular F.No.341/43/96-TRU dated 31.10.1996, the decision of the earlier Commissioner, communicated on 23.12.2004 was abinitio void, being contrary to the said circular of the board and further expressed as follows: “While the communication dated 23.12.2004 is based on the decision taken by the Commissioner, the same cannot be construed as an adjudication order/appealable order. Hon’ble CESTAT in the case reported in 2003(151) ELT 661 (T) held that letter/communication is not an adjudication order. Since the letter dated 23.12.2004 or for that matter, the decision on the note sheet as endorsed by the Commissioner cannot be considered as an order / appealable order, provisions of Section 74 and Section 86 of Finance Act, 1994 cannot be invoked. While Section 74 of the Act, 1994 inter alia mentions about order passed under the provisions of the Chapter (which refers to adjudication order), Section 86 of the Act, 1994, refers to any order passed by the Commssioner under Section 73 or Section 83A or Section 84 of the Act. The present case does not fall within the purview of Section 74 / Section 86 of the Act. Accordingly, the question of rectification of mistake or review of commissioner’s Order does not arise. Since it is not an order, the same could be withdrawn in as much as it is in conflict with the Circular issued by the Board. Under the provisions of law (Section 37 B of the Act) the Circular / Instructions issued by the board is binding on all departmental authorities and this has been held so by a no. of decisions of Hon’ble Apex Court. While the decision taken by the earlier Commissioner could be rescinded/letter withdrawn, the short levy cause (an amount of Rs.71 lakhs from Dec’04 to Sep’05) could be recovered by issue of demand notice under Section 73 of the Act. Since the decision was given in the month of December, 2004, the ST.3 returns pertaining to hat period would have been filed by 25th April, 2005 and accordingly the date of expiry for issuance of SCN under Section 73 of the Act falls on 24.4.2006. It is viewed that the mistake committed by the earlier Commissioner has to be corrected in the aforesaid manner. However, since the matter is not entirely free from doubt, necessary instruction is solicited in this regard.” Thereafter the Additional Commissioner (CCO) wrote to the Commissioner of Service Tax, Bangalore, who communicated the view of the Chief Commissioner as follows: ‘OFFICE OF THE CHIEF COMMISSIONER OF CENTRAL EXCISE: BANGALORE CENTRAL EXCISE ZONE: C.R.BUILDING: QUEENS ROAD: BANGALORE-560 001. However, since the matter is not entirely free from doubt, necessary instruction is solicited in this regard.” Thereafter the Additional Commissioner (CCO) wrote to the Commissioner of Service Tax, Bangalore, who communicated the view of the Chief Commissioner as follows: ‘OFFICE OF THE CHIEF COMMISSIONER OF CENTRAL EXCISE: BANGALORE CENTRAL EXCISE ZONE: C.R.BUILDING: QUEENS ROAD: BANGALORE-560 001. C.No.IV/16/377/2005 CC CEx (BZ) Dated: 09.01.2006 To, The Commissioner of Service Tax, Service Tax Commissionerate, Bangalore Sir, Sub: Erroneous decision taken by the earlier commissioner on certain activities relating to Courier Services – reg. Please refer to your letter C.No.IV/16/38/2004 ST Tech dated 22.12.2005 on the above subject I am directed by the Chief commissioner to inform you that clarification issued by an officer contrary to Board’s circular has no force. The party may be requested and persuaded to pay up in the light of the legal position as clarified in the Board’s letter. Your are requested to recover the amount without any delay by contacting and discussing with the party’s senior functionaries.” Yours faithfully Sd/-(D.P.NAGENDRA KUMAR) ADDITIONAL COMMISSIONER (CCO) 13. On 9.1.2006, itself the Commissioner wrote to the respondent-assessee which is extracted supra. The salient points of the communication dated 9.1.2006 are that: i) Subsequent to the letter dated 23.12.2004 issued by the department to the respondent-assessee, the matter was re-examined. ii) In the re-examination it was decided that International Door-to-Door Courier Service is subject to levy of service tax. iii)That the office letter dated 23.12.2006 issued to the respondent-assessee is abinitio void and hence it is nullified. iv) That the respondent-assessee was requested to discharge the service tax liability for the relevant period immediately. v) That a copy of the said letter was sent to the Assistant Commissioner of Service Tax Division(2) for information and necessary action and with a direction to issue a show-cause notice to the respondent-assessee for recovery of service tax and interest and to report the action taken in this regard to the Commissioner’s Office within seven days from the date of receipt of the said letter. The said aspect was not made known to the assessee. 14. The said aspect was not made known to the assessee. 14. On a comparison of the letter dated 9.1.2006 produced by the revenue as Annexure-A to the memorandum of appeal with the communication of the letter sent to the respondent-assessee both extracted supra, would make apparent that the footnote found in the letter at Annexure-A is absent in the letter sent to the respondent-assessee. In fact in the letter sent to the respondent-assessee, a direction is issued to pay the service tax liability for the period immediately and the procedure for making a demand by way of a show-cause notice as envisaged under the Act which is stated in the letter produced by the revenue at Annexure-A is totally absent. Since the respondent found that its position with regard to the liability to pay service tax which was initially held to be absent was reversed in the communication dated 9.1.2006 and further the said reversal ws without hearing the respondent-assessee and thirdly, a demand was made for payment of the service tax immediately without complying with the procedure envisaged under the Act by issuing a show-cause notice in the first instance, the respondent-assessee challenged the said order dated 9.1.2006 before the CESTAT by invoking Section 86 of the Finance Act, 1994, in which a contention was raised by the revenue that such an appeal was not maintainable and that Section 86 of the Finance Act, 1944 was not applicable to the facts of the case. The very same contention is raised in this appeal since the CESTAT has held that appeal was maintainable. In order to answer the said contention, it is necessary to extract Section 86(1)(1A)(2) of the Finance Act, 1994 which reads as follows: “86. Appeals to Appellate Tribunal- (1) Any assessee aggrieved by an order passed by a Commissioner of Central Excise under [Section 73 or section 83A or section 84], or an order passed by a Commissioner of Central Excise (Appeals) under Section 85, may appeal to the Appellate Tribunal against such order. (2) [(1A) (i) The Board may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Chapter. (2) [(1A) (i) The Board may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Chapter. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be.] [(2) The [Committee of Chief Commissioners of Central Excise] may, if it objects to any order passed by the Commissioner of Central Excise under section 73 or section 83A or section 84 direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order. [PROVIDED that where the Committee of Chief Commissioners of Central Excise differs in its opinion against the order of the Commissioner of Central Excise, it shall state the point or points on which it differs and make a reference to the Board which shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner of Central Excise is not legal or proper, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.]” Under the said section, an appeal is maintainable before the appellate tribunal if an “order” is passed under the sections mentioned. Therefore, if an order is passed under Section 73 or 83(a) or 84 or 85 an appeal can be filed by an assessee aggrieved by such an order before the appellate tribunal. Hence, it has to be ascertained a to whether the order dated 9.1.2006 is one under Sections 73, 83(a), 84 or 85 of the Finance Act, 1994. Section 73 deals with recovery of service tax not levied or paid or short levied or short paid or erroneously refunded while Section 83(a) deals with the power of adjudication and Section 84 deals with revision of orders by the Commissioner of Central Excise. Section 85 deals with appeals to the Commissioner of Central Excise. 15. Therefore, if in the exercise of power under Section 73 or 83(a) or 84 by the Commissioner of Central Excise or under Section 85 by the Commissioner of Central Excise (Appeals) an order is passed, an appeal would lie to the appellate tribunal if the assessee is aggrieved by such an order. In the instant case, it is necessary to decide as to whether any of the above provisions apply having regard to the facts of the case. In the instant case, it is necessary to decide as to whether any of the above provisions apply having regard to the facts of the case. The relevant portion of Section 73(a) of the Finance Act, 1994 reads as follows. “73. Value of taxable services escaping assessment-If- (a) the Central Excise Officer has reason to believe that by reason of omission or failure on the part of the assessee to make a return under Section 70 for any quarter or to disclose wholly and truly all material facts necessary for his assessment for any quarter, the value of taxable service for that quarter has escaped assessment or has been under-assessed, or (b) notwithstanding that there has been no omission or failure as mentioned in clause(a) on the part of the assessee, the Central Excise Officer has, in consequence of information in his possession, reason to believe that the value of any taxable service assessable in any quarter has escaped assessment or has been under-assessed, he may, in cases falling under clause (a), at any time within five years, and in cases falling under clause (b), at any time within six months from the date for filing the return, serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 70 and may proceed to assess or re-assess the value of taxable service, and the provisions of this Chapter shall, so far as may be, apply, as if the notice were a notice issued under that sub-section. Section 84 of the said Act reads as follows: “84. Revision of orders by the [Commissioner} of Central Excise-(1) The [Commissioner] of Central Excise may call for the record of a proceeding under this Chapter [in which an adjudicating authority subordinate to him has passed any decision or order] subordinate to him and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Chapter, pass such order thereon as he thinks fit. (2)No order which is prejudicial to the assessee shall be passed under this section unless the assessee has been given an opportunity of being heard. (3) The [Commissioner] of Central Excise shall communicate the order passed by him under sub-section(1) to the assessee, the [such adjudicating authority] and the Board. (2)No order which is prejudicial to the assessee shall be passed under this section unless the assessee has been given an opportunity of being heard. (3) The [Commissioner] of Central Excise shall communicate the order passed by him under sub-section(1) to the assessee, the [such adjudicating authority] and the Board. (4) No order under this section shall be passed by the [Commissioner] of Central Excise in respect of any issue if an appeal against such issue is pending before the [Commissioner] of Central Excise (Appeals). (5) No order under this section shall be passed after the expiry of two years from the date on which the order sought to be revised has been passed.” 16. If the communication dated 9.1.2006 is construed to be an order under Section 73 of the said Act, then in that case show-cause notice had to be issued to the respondent-assessee as a pre-requisite before demanding payment of service tax by specifying the amount in the show-cause notice before passing the order dated 9.1.2006. Whereas, if it is to be construed as one under Section 84 of the Act, then in such a case, the procedure envisaged under Section 84(2) had to be complied with. In either event, the aggrieved assessee has a right to challenge such an order before the CESTAT under Section 86 of the Act. Section 73 refers to “Central Excise Officer” while Section 84 uses the word “adjudicating authority”. Both the phrases are not defined under Section 65 of the Finance Act, 1994. However, under Section 65(125) it is stated that words and expressions used, but not defined in Chapter V and defined in the Central Excise Act. 1944 or the Rules made thereunder shall apply insofar as may be in relation to service tax as they apply in payment of duty of excise. Therefore, we have to refer to the Central Excise Act, 1944 in order to understand the scope of the said expressions in the aforesaid two sections. Under Section 2(b) the Central Excise Act, Central Excise Officer is defined as follows: “2. Therefore, we have to refer to the Central Excise Act, 1944 in order to understand the scope of the said expressions in the aforesaid two sections. Under Section 2(b) the Central Excise Act, Central Excise Officer is defined as follows: “2. Definitions-In this Act, unless there is anything repugnant in the subject or context- (c) “Central Excise Officer” means the Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional commissioner of Central Excise, (Joint Commissioner of Central Excise) Deputy Commissioner of Central Excise, Assistant Commissioner of Central Excise or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) with any of the powers of a Central Excise Officer under this Act;” Whereas, “Adjudicating Authority” under Section 2(a) of the aforesaid Act is defined as follows: “2(a) “adjudicating authority” means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 (54 of 1963), (commissioner of Central Excise(Appeals) or Appellate Tribunal;” Therefore, the expression “Commissioner” can come within the scope of definition of Central Excise Officer and “adjudicating authority” means any authority competent to pass order or decision under the Act other than the Board. 17. But Section 84 of the Finance Act, 1994 states that the Commissioner of Central Excise can call for the record of a proceeding in which an adjudicating authority “subordinate to him” can pss any decision or order and make such enquiry or cause such enquiry to be made and pass such order as he thinks fit that in order which is prejudicial to the assessee can be passed under Section 84 unless the assessee has been given an opportunity of being heard. Therefore any exercise of power under section 84 of the Finance Act 1994 is an “order” within the meaning of the said Act. 18. Therefore any exercise of power under section 84 of the Finance Act 1994 is an “order” within the meaning of the said Act. 18. Having regard to the fact that in the instant case, the Additional Commissioner on 23.12.2004 had held that the activity of the assessee does not come within the purview of service tax, it can be construed that the said order made on 23.12.2004 by the Additional Commissioner is by an adjudicating authority subordinate to the Commissioner of Central Excise, having regard to the definition of “Central Excise Officer” under Section 2(a) of the Central Excise Act, 1944. Therefore, the Commissioner of Central Excise had to give an opportunity of being heard to the respondent-assessee before passing an order s per Section 84. As already noted, without giving an opportunity to the assessee, the order dated 23.12.2004 was reversed and further the order dated 23.12.2004 was held to be void abinitio and nullified and hence, the exercise of power if under Section 84 by the Commissioner of Central Excise in the instant case was vitiated by not complying with the mandatory requirements stated therein. 19. Further under Section 73 of the Act, recovery cannot directed without issuing a show-cause notice under the said section. Therefore if the communication dated 9.1.2006 is construed as one under section 73 of the Act as a direction to pay tax immediately was issued then also, it would be an order within the meaning of Section 86 and an appeal would lie to CESTAT. 20. Under the circumstances, the respondent-assessee rightly invoked the appellate remedy by filing an appeal under Section 86(1) of the Finance Act. The Tribunal was therefore, justified in holding that the communication dated 9.1.2006 was an order which was appealable before the CESTAT and that the said order was passed without complying with the principles of natural justice and thereby setting aside the same by allowing the appeal. Consequently, any show-cause notice that has been issued by virtue of order dated 9.1.2006 also does not have any validity in the eye of law there being infraction of Section 73 and 84 of the Finance Act 1994. 21. Consequently, any show-cause notice that has been issued by virtue of order dated 9.1.2006 also does not have any validity in the eye of law there being infraction of Section 73 and 84 of the Finance Act 1994. 21. The decisions relied upon by the learned counsel for the appellant in the case of Steel City Beverages Pvt. Ltd. V/s.Commissioner of Central Excise, Jamshedpur (2003 (151) E.L.T.661 (Tri-Kolkata) which states that there is no estoppel against the letter against which no right of appeal exists and the decision in the case of E-Biz.Com Pvt. Ltd. V/s.Commissioner of Central Excise, India (2008(12) S.T.R.438 (Tri-Del.) which states that when a clarificatory letter is issued at the behest of assessee, there is no demand of service tax or interest or penalty and there is no determination of rights, final or adverse no cause of action for the assessee to file an appeal are not applicable, considering the fact situation of the present case and the fact that we have held that the Communication dated 9.1.2006 is an order passed within the meaning of Section 86 of the Act against which an appeal is maintainable. For the aforesaid reasons, the decision reported in the case of Commissioner of Central Excise, Ranchi Vs. Usha Martin Industries (2006 (196) E.L.T. 317 Tri-Kolkata) holding that there can be no estoppel against a letter against which no right of appeal exists also does not apply to the facts of the case since in the instant case we have held that the Communication dated 9.1.2006 is an appealable order. 22. Therefore while affirming the order of CESTAT and by answering substantial questions of law No.1 against the Revenue, we direct the Competent Authority to pass an order after giving an opportunity of being heard to the respondent-assessee and complying with all other mandatory requirements of Section 73 or 84 of the Finance Act as the case may be and pass fresh orders in accordance with law. Therefore substantial questions of law No.2 need not be answered in this appeal. We accordingly dismiss this appeal by answering the substantial question of law No.1 against the Revenue.