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2013 (2) TMI 246 - AT - Service TaxPower of Commissioner Appeal to remand back of case to AO - Demand and penalty of Service Tax - Interest u/s 75 - Penalties u/s 76 to 78 – Partnership Firm - One of the partners, had passed away on 22/02/2008 - Before issue of the SCN – Whether the partnership firm stood dissolved on 22/02/2008 or continued thereafter Held that:- Following the decision in case of MIL INDIA LTD. (2007 (3) TMI 8 - SUPREME COURT OF INDIA) that the power of remand by the Commissioner (Appeals) had been taken away by Parliament by amending Section 35A of the Central Excise Act w.e.f. 11/05/2001. The partnership firm of 4 partners in this case stood dissolved on 22/02/2008 with the death of Ch. Devadanam unless the partnership deed contained a contract to contrary. Whether the partnership deed expressly or by necessary implication provided continuance of the firm in the event of death of one of the partners is a pure question fact and the same has to be settled by the original authority after giving all the surviving partners as well as the legal heir of the deceased partner a reasonable opportunity of adducing evidence The Commissioner (appeals), albeit without the power of remand, took the correct view that the matter required to be readjudicated. Therefore, uphold the reason recorded by him for sending the case to the original authority. Accordingly, the present appeal is allowed by way of remand to the original authority with a direction to undertake de novo adjudication of the show-cause notice after giving the surviving partners and the legal heir of the deceased partner. Remand back to AO
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