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2020 (2) TMI 815 - HC - Service TaxLevy of Service tax - Whether the tribunal was correct in accepting the contention of the respondent BSNL that service tax is leviable on the actual receipts and not the gross receipts? - HELD THAT:- Section 35C of the Central Excise Act, 1944 confers jurisdiction upon the Appellate Tribunal to pass such orders which are indicated therein, including orders confirming, modifying or annulling the decision or order appealed against. However, Section 35C of the Act of 1944, does not confer any jurisdiction upon the learned Tribunal to carryout assessment of the tax liability and records its own conclusion on that behalf. Thus, a function which has to be left to the assessing authorities had been undertaken by the learned CESTAT in a manner, which is, impermissible in law, more so, when such an exercise was not attempted even by the Commissioner of Central Excise. Moreover, no justification whatsoever has been offered in the impugned order dated 13- 12-2018 as to the reason why the appeal preferred by the appellant herein was rejected. The impugned order dated 13-12-2018 is held to be unsustainable in the eye of law and the same is accordingly, set aside - Appeal allowed - decided in favor of appellant. Revenue permitted to issue fresh SCN - Such demand, if any, raised by the appellant, shall clearly specify and exclude the “non-taxable” services from the gross receipt and also indicate the period as well as the particulars of the SSA to which the same relates to.
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