Charterhouse Detective Services vs Commissioner Of Central Excise

(Arising out of Order-in-Original No. 23/ST/COMMR/2010 dated 28/07/2010 passed by Commissioner of Central Excise, Aurangabad.)

For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

====================================================== Charterhouse Detective Services Appellant Vs. Commissioner of Central Excise, Aurangabad Respondent

Appearance:

Shri- Pradeep Korde, Consultant for Appellant Shri- A.K. Goswami, Additional Commissioner (AR), for Respondent

CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)

Date of Hearing : 13/08/2015 Date of Decision : 13/08/2015

ORDER NO

Per: M.V. Ravindran

This appeal is filed by the appellant against Order-in-Original No. 23/ST/COMMR/2010 dated 28/07/2010.

2. Heard both sides and perused the records.

3. On perusal of records, it transpires that the appellant herein has filed the appeal against order in review passed by the commissioner of Central Excise, Customs and Service Tax, Aurangabad, under the provisions of Section 84 of the Finance Act 1994 and imposing penalty under Section 76 of the Finance Act 1994.

4. The adjudicating authority vide Order-in-Original No. 121/ST/Additional Commissioner/2008 dated 31.10.2008, held the appellant herein is liable to pay service tax, interest and also imposed penalty under Section 78 of the Finance Act 1994. He did not impose any penalty on the appellant under section 76 of the Finance Act 1994.Against the order-in-original dated 31/10/2008, the appellant herein filed an appeal before the first appellate authority. The first appellate authority also concurred the views and rejected the appeal by order-in-appeal no. AGS(131)22/09 dated 25/06/2009. Said order in appeal was carried in appeal before the tribunal in appeal no ST/217/2009 which was disposed of by the Tribunal by setting aside the order in appeal dated 25/06/2009 by way of remand to the adjudicating authority.

5. This order is reported at 2011 TIOL 48 CESTAT Mum. Since the issue involved in this appeal is before the adjudicating authority on remand from the Tribunal, we find that the impugned order in review which imposes penalty under Section 76, also needs to be set aside, as it does not survive when the order in original dated 31/10/2010 is already set aside by doctrine of merger.

6. The impugned order in review is set aside and the appeal is disposed of. (Dictated in Court)

(C.J. Mathew)

Member (Technical) (M.V. Ravindran)

Member (Judicial)

akp 1 3 APPEAL No.ST/613/10-Mum