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TMI Blog2011 (6) TMI 360X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the order has been passed on the rectification application. Since such application was disposed of on 27.9.2010, and the appeal was filed before the Commissioner (Appeals) on 18.10.2010, the appeal could not have been dismissed on the ground of time-bar. Since there is no finding on the merits of the demand, by the Commissioner (Appeals) set aside the impugned order and remit the case to the lower appellate authority for decision on merits after extending a reasonable opportunity of hearing to the assessees. In favour of assessee by way of remand. - ST/S/161/2011 & ST/239/2011 - 685/2011 - Dated:- 24-6-2011 - Jyoti Balasundaram, J. For Appellant: Shri M N Bharathi, Adv. For Respondent: Shri Parmod Kumar, Adv. Per: Jyoti B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty under Section 76 cannot be imposed, when penalty under Section 78 has been imposed. But, in our case penalty has been imposed under both the sections against the statutory provision of Section 78. These are the errors, which are apparent on the face of order in original. 2.0 In view of the above reasons, we humbly request that the adjudicating authority may kindly pass an appropriate order under the provisions of Section 74 of the Finance Act, 1994 by rectifying the error. 2) On 27.9.2010, the office of the Asst. Commissioner sent the following communication rejecting the clarification sought for by the assessees. The letter dt. 27.9.2010 is reproduced herein below:- Sub : Service Tax - Passing of Order in Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee had filed the rectification application within the period prescribed in the statute. Therefore, the period of limitation for filing the appeal to Commissioner (Appeals) is to be reckoned from the date of which the order has been passed on the rectification application. Since such application was disposed of on 27.9.2010, and the appeal was filed before the Commissioner (Appeals) on 18.10.2010, the appeal could not have been dismissed on the ground of time-bar. Since there is no finding on the merits of the demand, by the Commissioner (Appeals), I set aside the impugned order and remit the case to the lower appellate authority for decision on merits after extending a reasonable opportunity of hearing to the assessees. 4. The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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