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TMI Blog2017 (12) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... ility thereof and quality of evidence examined. Matter is remanded to learned adjudicating authority to readjudicate the matter by 31st March 2018 granting fair opportunity of hearing to the appellant. - ST/85386, 85387 & 85388/13-Mum - A/90859-90861/17/STB - Dated:- 31-10-2017 - Dr. D.N. Panda, Judicial Member And Mr. C.J. Mathew, Technical Member Shri R.G. Sheth, Advocate, for appellant Shri M. Suresh, Deputy Commissioner (AR), for respondent ORDER Dr. D.N. Panda Learned counsel Shri R.G. Sheth submits that the following disputes gave rise to adjudication:- i) allegation of non payment of Service Tax (Rs.2.87 Cr. approx.) on the amounts (excess or mark up on ocean freight) received from parties whose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reight is concerned, that was the difference between the freight charges received from service recipients and freight charges paid to shipping company which is the profit of the appellant and not subject matter of taxation under Finance Act, 1994, but may be the subject matter of Income Tax Act, 1961. Finance Act, 1994 not being an income taxation law, this fundamental aspect should not have been ignored by the Authority to reach to a proper conclusion. 4. On the point of brokerage, appellant says that brokerage cannot be brought to the taxing entry of steamer agent commission. Brokerage may be a commission or may have any other character in the eyes of law. That was not examined but an abrupt conclusion was made to tax. 5. In respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rry out following exercises to do justice to the appellant:- (1) The materials provided by the appellant or may be provided in the course of readjudication shall be considered thoroughly against each and every allegation in respect of the dispute stated in para 1 above to first determine whether there was incidence of tax in respect of each receipt. (2) If the incidence of taxes has arisen, under which provision of law that has arisen is to be ascertained. Learned adjudicating authority has to test the elements of the applicable taxing entry with the materials on record. (3) The Authority should not have a prejudged mind that there was incidence of tax. Entire plea of appellant and its records thoroughly examined. Records of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be written in the judgment/order, which may not be germane to the facts of the case; It should have a co-relation with the applicable law and facts. The ratio decidendi should be clearly spelt out from the judgment/order. (b) After preparing the draft, it is necessary to go through the same to find out, if anything, essential to be mentioned, has escaped discussion. (c) The ultimate finished judgment/order should have sustained chronology, regard being had to the concept that it has readable, continued interest and one does not feel like parting or leaving it in the midway. To elaborate, it should have flow and perfect sequence of events, which would continue to generate interest in the reader. (d) Appropriate care should b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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