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TMI Blog2011 (8) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... rder-In-Appeal No.29-ST/RPR-II/2007, dt. 23.08.07 and Order-In-Original No. Commr/RPR/46/2008, dt. 16.05.08 by elaborate reason stated in para 6.1 to 6.3 of the Adjudication Order dt. 29.10.09, Revenue went in appeal against that order before ld. Appellate Authority. That Authority held that in so far as 5 nos. of G-Type quarters and 20 nos. of H-Type quarters are concerned, service tax was to be imposed and levied/service tax demand of Rs.2,51,648/-. So also he levied penalty of Rs.1,000/- u/s 77 of the Finance Act, 1994 as well as penalty of Rs.31,63,810/- u/s 78 of the said Act while waiving penalty u/s 76 of that Act. While levying tax, the Appellate Authority did not give opportunity of defence to the Appellant. 1.2. Ld. Advocate also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eded basing on a circular, the appellant should have been given an opportunity by the Appellate Authority to lead defence against proposal for taxation of service relating to construction of aforesaid quarters. The appellate order is cryptic and unreasoned. Therefore, we consider it proper to send the matter back to the Appellate Authority who shall have opportunity to reexamine the issue of taxability in respect of aforesaid 5 nos. of G-Type quarters and 20 nos. of H-type quarters, granting fair opportunity of hearing to appellant and to adduce evidence, if any, for its defence. In the process of denovo adjudication on the above limited issue, he is expected to examine Department's view in Order-In-Appeal No.29-ST/RPR-II/2007 dt. 23.08.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty dropped by Adjudicating Authority need not be approved. But such averments of appellant was opposed by Revenue. 4.2. We noticed that ld. appellate authority waiving penalty u/s 76 of the Finance Act, 1994 imposed penalties u/s 77&78 of the said Act, to the extent indicated in his order while by an elaborate and reasoned order in terms of para 6.1 to 6.4, ld. Adjudicating Authority did not levy penalty finding no malafides of the appellant to evade payment of tax. 4.3. Ld. first Appellate Authority proceeded on the basis of law laid down by Apex Court in the case of Dharmendra Textiles reported in 2008 (231 ELT (SC). The law laid down therein having been explained in the case of Rajasthan Spinning Mills, by the Apex Court , the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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