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TMI Blog2017 (11) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... ls are common, they are taken up together and disposed of, by a common order. 3. The respondent is a manufacturer of ready mix concrete, registered with the department for rendering services under the category, "Goods Transport Service". They supplied such item, by taking ready mix concrete, in vehicles specially designed for transportation of the item and supplied the same at the site, where construction took place. The vehicles used for this purpose had facility for pumping ready mix concrete from the container, on the vehicle, to the work site and the material was so supplied by pumping, for which, pumping charges were collected. Since service tax liability was attracted on "pumping charges", under the category, "Transportation of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Revision Order No.35 of 2009, dated 27.03.2009, imposing penalty of Rs. 25,00,000/-, under Section 78 of the Act. Penalty came to be challenged by the respondent, in Appeal No.ST/383/2009, before the CESTAT, Chennai. 7. It is the case of the appellant that erroneously observing that the department has not filed any appeal against Order-in-Original No.32/09 (MST), dated 27.07.2009, setting aside the demand of tax, vide order, dated 11.02.2014, in Final Order No.40130 of 2014, CESTAT, Chennai, held that when the demand for tax itself is not sustainable, there cannot be any penalty imposed on the same matter. Saying so, CESTAT, Chennai, allowed the appeal filed by the respondent, setting aside the order of penalty, imposed in Revision Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the OIO and issued revision notice 3/2008 dated 28/02/2008 in terms of powers vested under Section 84 of the Finance Act, 1994, against dropping of all penalties under Section 76,77 and 78 of the Act by the adjudicating authority. The Commissioner in his revision order dated 27/03/2009 imposed penalty of Rs. 25,00,000/- under Section 78 of the Act. Appellant filed the present appeal against the revision order. Tribunal in Final Order dated 11/02/2014 allowed the appeal by setting aside the impugned order. 4. On perusal of Final Order, I find neither the appellant nor the Revenue has brought out this fact before the Tribunal that appeal filed by the Revenue against the OIA dated 27/07/2009. Therefore, this Tribunal at para-2 while discus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed in Miscellaneous Order No.40352 of 2015, dated 13.02.2015 (Revision No.ST/ROM/41171/2014 in ST/383/2009), is challenged in C.M.A.No.2997 of 2017, on the following substantial question of law, "Whether, in the facts and circumstances of the case, the decision of CESTAT in refusing to recall the Final Order for purpose of hearing the appeals together was correct in law even after admitting and correcting the mistake?" 11. On this day, when the appeals came up for hearing, Mr.A.P.Srinivas, learned counsel for the appellant, in both the appeals, submitted that subsequently, CESTAT, Chennai, has passed Final Order No.41563 of 2017 in Appeal No.ST/505/2009, dated 09.08.2017, filed by the appellant, against the Order-in-Appeal No.32/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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