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TMI Blog2017 (6) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... o. For the Appellant Shri Pakshi Rajan, AR For the Respondent ORDER Per S. S. Garg The present appeal is directed against the impugned order dated 28.08.2013 passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) has remanded the matter to determine the amount of penalty under Section 78 to the lower authority. Briefly the facts of the case are that the appellant is registered with the Service Tax under various services such as online information database access, Business Auxiliary Service, Information Technology Service and is also engaged in the trading activity of journals. While earning the trading income, the appellant has also earned some commission income and hence the service tax paid on freight inward and outwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and upheld the order to the extent but on Outward Catering Service, the learned Commissioner (Appeals) allowed the credit. But the learned Commissioner (Appeals) disposed of the appeal with a direction to the lower authority to quantify the penalty under Section 78. Aggrieved by the said order, the appellant has filed the present appeal. 2. Heard both the counsels and perused the records. 3. Learned consultant on behalf of the appellant submitted that the impugned order is not sustainable in law. He further submitted that as per Rule 14 of the Cenvat Credit Rules it is provided that when the cenvat credit has been taken or utilized wrongly or has been erroneously refunded, the same along with interest shall be recovered from the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 was not even proposed and therefore invoking Section 78 for imposing the penalty is wrong. In support of his submission, he relied upon the following decisions: a) Gopal Zarda Udyog 2005 (188) E.L.T. 251 b) Pahwa Chemicals (P) Ltd. Vs. Commissioner of Central Excise 2005 (189) E.L.T. 257 c) Anand Nishikawa Co. Ltd. Vs. Commissioner of Central Excise 2005 (188) ELT 149 (SC) d) Lubri Chem Industries Limited Vs. Collector of Central Excise, Mumbai 1994 (73) ELT 257 (S.C) e) Pahwa Chemicals (P) Ltd. Vs. Commissioner of Central Excise 2005 (189) ELT 257 (SC) f) Commissioner of Central Excise Vs. Raptakos Brett & Co. Ltd. 2006 (194) ELT 101 (T-Mumbai) g) Grand Ashok Vs. Commissioner of ST 2009 (15) STR 344 (T-Bangalore) h) Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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