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TMI Blog2011 (2) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the order of the Commissioner (Appeals) No.267/2010 dt. 20.7.2010. 2. Heard both sides. 3.1. The relevant facts, in brief, are that the respondent is a manufacturer of Oleoresin and they are exporting the said product. They have utilized services of foreign based commission agents for getting export orders and made payment to the said foreign based firms. During the period from 16.6.2005 to 29.2.2008, they paid totally sum of Rs.25,62,777/- as commission. A show cause notice dt. 11.11.2008 was issued alleging that the respondents, as recipient of the services were required to pay service tax of Rs.3,10,446/- along with interest and that they are liable to penalties under Section 76, 77 and 78 of the Finance Act, 1994. Original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elies on the decision of the Larger Bench of the Tribunal in the case of Sindhu Resettlement Corpn. Ltd. Vs CCE Rajkot [2000 (118) ELT 182]. c) The Commissioner (Appeals) should not have remanded the matter to the original authority for the purpose of quantifying service tax demand from 1.10.2007 and quantifying penalties under Section 76 77 inasmuch as he does not have power of remand after amendment of Section 35A (3) w.e.f. 11.5.2001. In this regard, he relies on the decision of the Hon ble Supreme Court in the case of MIL India Ltd. Vs CCE Noida [2007 (210) ELT 188 (SC)]. 5.1. Ld. advocate for the respondent strongly supports the order of the Commissioner (Appeals). He seeks leave to introduce certain documents stating that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment incorporated in the taxing statute making the service recipient to tax cannot be the basis of imputing mens rea to a person liable to pay tax when he has continued to do after the amendment what he was doing prior to the amendment and the same was lawful prior to amendment is correct. The decision of the Commissioner (Appeals) against invoking extended period of limitation should not be interfered with. He also fairly concedes that as the power of remand is not available to the Commissioner (Appeals), the duty liability within the normal period of limitation could have been arrived at by the Commissioner (Appeals) himself. 6. Ld. DR, in his rejoinder, submits that the letter dt. 15.2.2006 from the Superintendent to the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that these documents were not produced before the Commissioner (Appeals). 8. I deem it proper that the matter goes back to the original authority for fresh consideration by him. To enable the same, I set aside the order of the Commissioner (Appeals) and order of the original authority and remand the matter to the original authority for fresh consideration with the following directions :- a) as recipient, the respondent is not liable to pay service tax for the period prior to 17.4.06 b) the issue relating to time bar shall be considered afresh in the light of evidence now submitted before the Tribunal c) penalty, if any, imposable shall be determined afresh. 9. The original authority shall decide the matter afresh after ..... X X X X Extracts X X X X X X X X Extracts X X X X
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