Custom, Excise & Service Tax Tribunal
Cc, Ce & St, Guntur vs Sh. V.Rajendra Prasad on 9 December, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench SMB Court I Appeal No. ST/22788-22789/2014 & ST/22944/2014 (Arising out of Order-in-Appeal No. 48 & 49/2014 (G) ST, Order-in-Appeal No. 46 & 47/2014 (G) ST dt. 09.05.2014 Order-in-Appeal No. 55 & 56/2014 (G) ST dt. 30.05.2014 passed by CC, CE & ST (Appeals), Guntur) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member (Judicial) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? CC, CE & ST, Guntur ..Appellant(s) Vs. Sh. V.Rajendra Prasad Sh. G. Sambasiva Rao Sh. B. Leela Prasad ..Respondent(s)
Appearance Sh. Guna Ranjan, Superintendent (AR) for the Appellant. None for the Respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member (Judicial) Date of Hearing: 09.12.2016 Date of Decision: 09.12.2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.]
1. The issue involved in all the three appeals being the same are heard together and are disposed by this common order.
2. The department has filed the present appeal challenging the order passed by the Commissioner (Appeals) who directed the adjudicating authority to re-examine and quantify the service tax payable by respondent. The penalty imposed under section 76 was set aside by the Commissioner (Appeals) and penalty under section 78 was reduced to 25% of service tax payable provided the respondent pays the same within 30 days from the receipt of the order passed by the Commissioner (Appeals). It is the contention of department contention that the Commissioner (Appeals) ought not to have been remanded the matter as the Commissioner (Appeals) has no powers for the same. It is also contended that the penalty imposed under section 76 ought not to have been set aside.
3. I have heard the Ld. AR Sh. Guna Ranjan and perused the records. None appeared on behalf of respondent. The main contention put forward by the department is that the Commissioner (Appeals) does not have powers to remand the matter. The law contained under section 85(5) of the Finance Act, makes it clear that the said provision does not prohibit the Commissioner (Appeals) from passing an order of remand of the matter. The said issue has been decided by the judgment passed in the case of Commissioner Vs Associated Hotels [2015 (37) STR 723 (Guj)]. Following the same, I am of the view that there is no infirmity in the order passed by the Commissioner (Appeals) in directing the re-examination of the issue and remand of the matter.
4. The second grievance raised by the department is that the Commissioner (Appeals) has set aside the penalty imposed under section 76 of the Finance Act. It is seen that the Commissioner (Appeals) has upheld the penalty imposed under section 78 and has given the option of reduced penalty of 25% of the service tax demand. It is settled law that penalty under section 76 and 78 cannot be simultaneously imposed. In view thereof, on this ground also I do not find any infirmity in the order passed by the Commissioner (Appeals). It is also seen that the amount involved in all the three appeals is below Rs. 10 lakhs. From the above, the appeals filed by department are dismissed on merits, as well as on monetary limits.
(Order pronounced & dictated in open court) (SULEKHA BEEVI C.S.) MEMBER (JUDICIAL) Jaya.
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