M/S. Radhkrishna Caterers vs Commissioner Of Central Excise Customs ...

[Arising out of Order-in-Order No. 24/ST/Commr/2011 dtd. 5/7/2011 passed by the Commissioner of Central Excise & Customs & Service Tax, Aurangabad]

For approval and signature:

Honble Mr Ramesh Nair, Member (Judicial)

=======================================================

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 : 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? =======================================================

M/s. Radhkrishna Caterers : Appellants

VS

Commissioner of Central Excise Customs & Service Tax, Aurangabad : Respondent

Appearance

Shri. P.K. Shetty, Advocate for the Appellants Shri. B.K. Iyer, Superintendent (A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 22/6/2015 Date of decision: 22/6/2015

Per : Ramesh Nair

This appeal is directed against Order-in-Original No. 24/ST/Commr/2011 dtd. 5/7/2011 passed by the Commissioner of Central Excise & Customs & Service Tax, Aurangabad, wherein Ld. Commissioner exercising revisionary power under Section 84 of the Finance Act, 1944, passed following order:

I impose a penalty for the period from 2006-07 to 10/5/2008 @ 2% of the amount of Service Tax of Rs. 2,05,727/- or 200/- per day, whichever is higher, for the period from 2006-07 to 10/5/2008, on M/s. Radhkrishna Caterers, C/o. Kinetic Engg. Ltd., Nagar Daund Road, Ahmednagar under Section 76 of the Finance Act, 1994, but such penalty shall not exceed the amount of Service Tax of Rs. 2,05,727/-. The Asst. Commissioner, Central Excise, Customs & Service tax, Division Ahmendnagar should communicate to M/s. Radhkrishna Caterers, Ahmednagar about the total amount of penalty for the period of default and M/s. Radhkrishna Caterers, Ahemadnagar should pay the same immediately.

Aggrieved by the said impugned order the appellant is before me.

2. Shri. P.K. Shetty, Ld. Counsel for the appellant at the outset submits that the Commissioner has revised original order of the Asstt. Commissioner bearing OIO No. 18/ST/09 dated 21/7/2009. He submits that the said original order was challenged before the Commissioner (Appeals) who upheld the Order-in-Original against which the Appellant had filed appeal before this Tribunal. This Tribunal vide final order No. A/415/2011/SMB/C-IV dated 12/10/11 disposed of the appeal by way of remand to the original adjudicating authority keeping all the issues open. It is his submission that since the matter for all the issues has been remanded by this Tribunal to the original adjudicating authority, this matter also should be remanded with direction to dispose of alongwith matter already remanded by this Tribunal vide order dated 12/10/2011.

3. On the other hand, Shri. B.K. Iyer, Ld. Superintendent (A.R.) appearing on behalf of the Revenue submits that since now at present the Commissioner has no power to pass any order under revision provision therefore matter should be remanded to the original authority so that issue involved in this case can also be decided in denovo adjudication as directed by this Tribunal in order dated 12/10/2011.

4. I have carefully considered the submissions made by both sides and find that present appeal arises out of revision order of the Commissioner in the revision proceedings of the order in original by the Asstt. Commissioner. Since in the very same case in earlier appeal of the appellant this Tribunal has set aside the original order itself and remanded the matter to the original adjudicating authority to decide the matter a fresh, keeping all issues open. I find that this matter should also go back to the original adjudicating authority for deciding the show cause notice a fresh on all the issues as directed by this Tribunal in order dated 12/10/2011. I therefore allow this appeal by way of remand.

(Dictated in court)

Ramesh Nair Member (Judicial)

sk

4