2012 (7) TMI 442

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... yer to decide the issue on merits. Accordingly, we have heard ld. AR and have gone through the impugned order-in-appeal passed by the Commissioner (Appeals). 2. It is seen that service tax of Rs.63,000/- stands confirmed against the appellant along with confirmation of interest and imposition of penalty of identical amount. The said confirmation of tax is on the ground that during the financial y .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... tification No. 6/2005-ST dated 1.3.2005. The demand was also assailed on the point of limitation as the same was raised on account of audit objection, without attributing any malafide to the appellant. 4. It is seen from the impugned order of Commissioner (Appeals) that the appellant's plea of the differential amount being profit on sale of mobile phones stands rejected by him on the ground of la .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... received from Cell phone Companies, as per details received from various Cell Phone Companies and the figures of the taxable service declared in their periodical ST-3 Returns. The appellants have contended that this differential amount, which as per the department is commission is the gross profit earned by them on sale of Mobile Phones. But I observe that no documentary evidence to show that they .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... icating authority has not even discussed as to what service was provided by the appellant to which Cell Phone Company and how the service rendered was considered as branded service. As such providing of branded service by the appellant is not proved, However, I observe that the benefit of Notification No. 6/2005-ST dated 1.3.2005 cannot be automatically provided to the appellant when it is not est .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X

..... om the original field officer. Inasmuch as the said disputes relate to verification of the factual position, which can be done only at an original level, we set aside the impugned order and remand the matter to original adjudicating authority for fresh decision, after verifying the facts. The plea of limitation is also being left open for re-consideration in de novo proceedings. Stay petition as a .....

X X   X X   Extracts   X X   X X

→ Full Text of the Document

X X   X X   Extracts   X X   X X