TMI Blog2011 (4) TMI 257X X X X Extracts X X X X X X X X Extracts X X X X ..... n 35 A (3) of the Central Excise Act - Decided against of revenue. - 1605 of 2010 (SM) - - - Dated:- 13-4-2011 - Shri Rakesh Kumar, J. Shri Krishan Pratap Singh, Authorized Representative (SDR) for the appellant. Shri Sunil Arora, C.A. for the respondent. Per. Rakesh Kumar :- The respondent are registered with service tax under the category of Real Estate Agent services. The point of dispute in this case was that according to the department during the period of dispute i.e. during period from October 2005 to March 2006, the respondent have short paid service tax amounting to Rs. 1,19,008/- as instead of paying service tax on the gross amount received, they had removed the element of service tax from the gross amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer of remand. 2. Heard both the sides. 2.1 Shri K.P. Singh, the learned Departmental Representative, assailed the impugned order reiterating the grounds of appeal in the Revenue s appeal and pleaded that in view of judgment of Hon ble Supreme Court in the case of MIL India Ltd. (supra) and Hon ble Punjab Haryana High Court judgment in the case of B.C. Kataria (supra) the Commissioner (Appeals) has no power of remand, that in this case the Commissioner (appeals) has remanded the matter to the original Adjudicating Authority for determining as to whether the gross amount received by the respondent included the element of service tax that the Commissioner (Appeals) should have done this scrutiny at his level instead of directing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. I have carefully considered the submissions from both the sides and perused the records. 4. In this case the department wanted to charge service tax from the respondent on the basis of their gross amount received, while according to the respondent the gross amount received included the element of service tax and hence the service tax could be charged only after removing the element of service tax from the gross amount. Since, the Commissioner (Appeals) found that the original Adjudicating Authority while giving a finding that service tax had been short paid, has not examined the documents produced by the respondent in support of their claim that the gross amount included the element of service tax, the Commissioner (Appeals) after h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
