2008 (8) TMI 67 - AT - Service Tax

By OIA, the Commissioner (A) reduced the demand by Rs. 11,244 directing that the same may be adjusted against interest & penalty revenue having not challenged the earlier order of Commissioner (A), the quantum of penalty as ordered by the Commissioner became final - Tribunal found force in the appellant s contention that the tax is to be worked out on the amount received by them inclusive of tax - refund is entitled of Rs. 11,244/-, the same may be adjusted against penalty

Summary

Issues:
1. Appeal against order-in-appeal upholding order-in-original with modifications.
2. Reduction of demand and penalty by Commissioner (Appeals).
3. Remand by Tribunal to original adjudicating authority.
4. Quantum of penalty and imposition.

Analysis:
1. The appeal was filed against the order-in-appeal that upheld the order-in-original with modifications. The Assistant Commissioner confirmed a service tax demand of Rs. 2,36,114/- with interest under Section 75 and imposed penalties under Sections 76 and 77. The Commissioner (Appeals) reduced the demand by Rs. 11,244/- and modified the penalty under Section 76 to Rs. 100/- per day. The order of the Assistant Commissioner was upheld with these modifications.

2. The duty demand was initially adjudicated by the Deputy Commissioner, holding the appellant liable for service tax and penalties. On appeal, the Commissioner (Appeals) reduced the penalties. The Tribunal remanded the matter back to the original adjudicating authority to consider the appellant's contention regarding the gross amount received inclusive of service tax. The appeal was allowed by way of remand.

3. The appeal was allowed by way of remand, and on remand, the Assistant Commissioner passed an order upheld by the Commissioner (Appeals) with modifications. The appellant did not contest the findings on merit but raised concerns about the quantum of penalty. The appellant argued that the penalty amount finalized by the Commissioner (Appeals) in a previous order should stand.

4. The main issue was whether the imposition of penalty was proper and justified. The Tribunal's direction to decide the penalty afresh did not authorize passing a more disadvantageous order. The appellant's failure to challenge the earlier penalty decision led to its finality. The adjudicating authority could not impose a penalty exceeding Rs. 20,000/- as per the remand order. The appellant was entitled to seek a refund adjustment against the penalty, as directed by the Commissioner (Appeals).

This detailed analysis covers the issues raised in the legal judgment comprehensively, addressing the appeal process, penalty imposition, and remand directions provided by the Tribunal.