2018 (7) TMI 261 – CESTAT KOLKATA – TMI – Demand of service tax alongwith equal amount of penalty u/s 78 – case of appellant is that the demand raised is already paid, which has not been considered while raising demand – Held that:- All the supporting documents were filed before the Adjudicating Authority and have also been filed before me, but the same were not filed before the lower appellate authority. Therefore, it would be appropriate to remand the matter to the lower appellate authority to consider the grounds of appeal filed by the appellant before the Tribunal – Appeal allowed by way of remand. – Appeal No.ST/75458/2018 – FO/76183/2018 – Dated:- 2-4-2018 – Shri P.K. Choudhary, Member (Judicial) Shri K.K. Banerjee, Advocate for the for the Appellant (s) Shri S.S. Chattopadhyay, Suptd.(AR) Respondent (s) ORDER Per Shri P.K. Choudhary 1. Heard both sides and perused the appeal records. 2. Ld. Commissioner (Appeals) vide the impugned order has allowed the Revenue s appeal and conf
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ement has not been considered while quantifying the Service Tax by the department. Therefore, I find that adjudicating authority without giving any proper-findings has allowed the abatement which is nothing but travelled beyond the scope of show cause notice. In this regard, I find that in the decision of CCE, Bhubaneshwar-I vs. Champdany Industries Ltd. [2009 (241) E.L.T. 481 (S.C.)] wherein it was held, inter alia, Apart from that, the point on Rule 3 which has been argued by the learned counsel for the Revenue was not part of its case in the show cause notice. It is well settled that unless the foundation of the case, is made out in the show cause notice, Revenue cannot in Court argue a case not made out in its show cause notice. {See: Commissioner of Customs, Mumbai v. Toyo Engineering India Ltd. – (2006) 7 SCC 592, para 16} The aforesaid decision by the Hon ble Apex Court makes it clear that under no circumstances, no decision should go beyond the scope of notice. Similar approach
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
operly in deciding the case in its true perspective and dropped a substantial portion of the demand as raised in the impugned show cause notice without any clear findings and without any proper reason which is a gross violation on his part and there is lot of infirmity in the said order. 6.3. As the respondent party also failed to submit any cross-objection and even did not desire any time to submit the same at the time of personal hearing before me, therefore it can be infer that appellant has nothing to say on their party and accepted the contention/grounds of appeal of the department. I also find that without any counter argument there is no reason to uphold the order where there is no proper findings towards revision of the tax demand raised by the department. Therefore, I find that the entire demand of tax along with interest and penalty is required to be confirmed and I fully accept the grounds of appeal filed by the department. Hence, I modify the order passed by the adjudicatin
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =