9911796707
TMI Blog2019 (2) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... rder - appeal allowed by way of remand. - Appeal No. ST/86948/2015 - A/85167/2019 - Dated:- 18-1-2019 - DR. D.M. MISRA, MEMBER (JUDICIAL) And MR. S. SRIVASTAVA, MEMBER (TECHNICAL) Shri Chirag Shetty, Advocate for Appellant Shri Dilip Shinde, AC (AR) for Respondent ORDER Per: Dr. D.M. Misra This is an appeal filed against Order-in-Appeal No. SR/33/ST-I/2015 dated 30.6.2015 passed by the Commissioner of Service Tax (Appeals), Mumbai-I. 2. Briefly stated the facts of the case are that the appellants are engaged in providing franchise services during the relevant period from July, 2003 to January, 2004. Since the appellant had failed to discharge Service Tax on the said services, show-cause notice was issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s left to the adjudicating authority for determination along with demand. He submits that the observation of the learned Commissioner (Appeals) would be wrongly construed by the adjudicating authority in examining the issue of imposition of penalty. 4. Per contra, the learned AR for the Revenue submits that the learned Commissioner (Appeals) has remanded the matter to the adjudicating authority for determination of tax, interest and penalty, therefore, in the event, no tax is payable, penalty would automatically be not attracted. Alternatively, if the quantum of duty is less, the penalty would automatically be proportionately less. Therefore, the appeal is premature and hence liable to be dismissed. 5. We have carefully considered the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervation of the learned Commissioner (Appeals) to determine the tax, interest and penalty will create confusion in the minds of the adjudicating authority. We do not find merit in the submission of the learned Advocate inasmuch as this Tribunal while remanding the matter back to the adjudicating authority observed that the adjudicating authority would consider the plea of the appellant on penalty under various section depending on the quantum of Service Tax recalculated and thus, there was no observation on the part of the Tribunal waiving imposition of penalty on the appellant and to calculate only Service Tax by the adjudicating authority. In these circumstances, we do not see reason to interfere with the order of the learned Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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