TMI Blog2010 (11) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... stayed or set aside - The considered view that both the lower authorities have erred in passing the orders, which are beyond the scope of the remand order - Set aside the impugned orders and allow the appeal filed by the assessee - ST/580/2010 - 1532/2010 - Dated:- 15-11-2010 - S/Shri M.V. Ravindran, P. Karthikeyan, JJ REPRESENTED BY : Shri K.S. Naveen Kumar, Advocate, for the Appellant. Shri D.P. Nagendra Kumar, Jt. CDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - This stay petition is filed for the waiver of the pre-deposit of the amount confirmed by the Adjudicating Authority as service tax due and consequent penalties and interest, which has been upheld by the ld. first appellate authority. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this is a second round of litigation on this issue. He would submit that in the first round of litigation, this Bench had come to the conclusion that the appellant is sub-consultant of M/s. Chandavarkers and Thackers Pvt. Ltd. and coming to the conclusion, had remanded the matter back to the Adjudicating Authority only for limited issue of ascertaining the fact as to whether the main consultant has already discharged the service tax. He draws our attention to the said findings in Final Order No. 1382/2006 dt. 14-8-2006 reported at 2006 (4) S.T.R. 475 (Tri. - Bang.). After bringing to our notice the decision of this Tribunal in the same case of appellant, he draws our attention to the impugned orders of the lower authorities and submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld by the Apex Court in the case of Fennerndia Ltd v. CCE [2004 (167) E.L.T. 18 (S.C.)] and in the case of Poulose Mathen v. CCE [1997 (90) E.L.T. 264 (S.C.)]. The learned Counsel pointed out to the tabulated details showing fees along with Service tax paid by M/s. Chandavarkar Thacker Architects Pvt. Ltd. and submits that these details had been furnished to the Original authority but he has incorrectly noted that they have not produced the same. He submits that if the said details were considered then there is no Service tax liability at all in the present case. He also submits that penalty is not leviable as Finance Act clearly laid down that prior permission of the Commissioner has to be taken for levy of penalty under Section 78 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avarkers and Thackers Pvt. Ltd. If that be so, the specific direction of the Tribunal was for limited purpose of checking the factual position whether the main consultant has discharged service tax liability on the entire amount and if it is found so, then the benefit in accordance with the law be given to the appellant. On mere perusal of the lower authorities order, we find that both the lower authorities have come to the conclusion that the appellant is consultant to M/s. Chandavarkers and Thackers Pvt. Ltd. Suffice to say that the lower authorities cannot take a different view than the view expressed by the Tribunal, unless the order of the Tribunal is stayed or set aside. On specific query from the Bench, both sides submit that the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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