TMI Blog2011 (11) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... ana High Court) As against the revisionary order of the Commissioner passed on 24.12.2009 enhancing the penalty is concerned, when the order-in-original dated 25.2.2009 stands already set aside by him on 31.8.2009. The Commissioner has chosen to exercise revisional jurisdiction in respect of an order which did not exist. On this ground alone, this order cannot be sustained. In view of the above, the order of the Commissioner (Appeals) dated 31.8.2009 is upheld and the order of the Commissioner dated 22.12.2009 is set aside. - ST/ 972 & 849 of 2010 - - - Dated:- 25-11-2011 - Shri M. Veeraiyan, J. Appearance Mr. M. Ravi Rajendran, DR for the Revenue Mr. Akbar Basha, C.A., for the assessee 1.1 Appeal No. ST/972/2010 is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 3,84,217/- along with interest and imposed penalty of Rs. 83,600/- under Section 76 of the Finance Act, 1994. 3.2 On appeal by the party, the Commissioner (Appeals) vide his order dated 31.8.2009 has set aside this order dated 25.2.2009 of the original authority in toto. 3.3 The Commissioner vide order dated 24.12.2009 chosen to modify the non-existing order-in-original dated 25.2.2009 by enhancing penalty from Rs. 85,600/- to 3,39,280/-. 4. The learned DR, relying on decision of the Tribunal in the case of Commissioner of Central Excise Service Tax Vs. Supreme Industries Ltd. [2011-TIOL-1082-CESTAT-MUM] and the decision of the Tribunal in the case of M/s ITC Ltd. Vs. Commissioner of C. Ex., Guntur [2011-TIOL-568-CESTA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y service tax on such services received by them. Whether such a deemed service provider can utilize the CENVAT credit while paying service tax due by them stands decided in favour of the assessee by the Hon'ble High Court of Punjab Haryana in the case of M/s Nahar Industrial Enterprises Ltd. Ors. cited supra. It appears that the decision of the Hon'ble High Court of Punjab Haryana, dated 6.5.2010 has not been brought to the notice of the Tribunal when the matter in the case of M/s ITC Ltd (supra) was decided on 29.3.2011. 6.3 As the question stands resolved in favour of the assessee, I do not find merit in the appeal filed by the department. 6.4 As regards, the assessee's appeal against the order of the Commissioner passed in re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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