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TMI Blog2011 (4) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax Department in the category of Real Estate Agent service providers. It was alleged that during the period from October, 2004 to March, 2005, they have taken and utilised Cenvat credit of Rs.13,260/- in respect of certain input services to which they were not entitled. The Asstt. Commissioner vide Order-in-Original dated 20.11.2009 disallowed Cenvat credit and confirmed the Cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST-3 Return for the period October, 2004 to March, 2005 submitted by the party. On perusal of the records, it appears that Cenvat Credit is not admissible to the party as they have failed to establish that the service for utilising credit has been availed by them is their input service. The party is, therefore, liable for penalty and the demand raised against them is legal & proper. 2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Section 86 of the Finance Act, 1994 regarding filing appeal before the Commissioner (Appeals) are in pari materia with the provisions of Section 35 A of the Central Excise Act, 1944, that in view of the judgement of the Hon ble Supreme Court in the case of MIL India Ltd. reported in 2007 (210) ELT 188 (SC) and Hon ble Punjab & Haryana High Court in the case of B.C. Kataria reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o powers. 5. Shri Deeraj Nethani, employee of the respondent company defended the impugned order by reiterating the findings of the Commissioner (Appeals). 6. I have carefully considered the submissions from both the sides and perused the records. In this case while it is true that the original adjudicating authority has decided the matter against the respondent ex parte and the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut this is not the case here, as on the basis of the documents on records, it was possible for the Commissioner (Appeals) to give his findings even if those had not been considered by the original adjudicating authority. In view of this, I find that the Commissioner (Appeals) s order remanding the matter to the original adjudicating authority is not sustainable and the same is set aside. The matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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