TMI Blog2012 (7) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Commissioner (Appeals) and that of the original authority and remand the matter to the original authority to give specific findings on the issues raised in the show-cause notice. - ST/1042/2009 - 829/2011 - Dated:- 9-12-2011 - M Veeraiyan, J. For Appellant: Mr D S Kantaraj, DR For Respondent: Mr V J Sankaram, Adv. Per: M Veeraiyan: This is an appeal filed by the Department against the order of the Commissioner (Appeals) No. 45/2009(H-III) ST dtd. 14/09/2009 by which order of the original authority confirming demand of service tax of Rs.1,64,101/- along with interest and imposing penalty of equal amount stands set aside. 2. Heard both sides. 3.1. The respondent is a manufacturer of transmission tower and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of service tax and interest already paid. In addition, he imposed a penalty of Rs.1,64,101/-. On appeal filed by the party, the Commissioner(Appeals) has set aside the order of the original authority following the decision of the Tribunal in the case CCE, Mumbai Vs. GTC Industries Ltd. [2008 (12) STR 468 (Tri. LB)]. 4. Ld. DR submits that the respondent-assessee has not disputed the service tax liability before the original authority. Therefore, Commissioner (Appeals) erred in setting aside the order of the original authority. 5. Ld. Advocate for the respondent-assessee submits that their payment of service tax based on audit objection cannot be treated as acceptance of liability. When the show-cause notice was issued proposing co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards service tax and interest. In addition he imposed a penalty of Rs.1,64,101/- under Rule 15 of the CENVAT Credit Rules, 2004 read with Section 78 of the Finance Act, 1994. Undisputedly this order was an order appealable before the Commissioner (Appeals). Before the Commissioner (Appeals), the assessee appears to have challenged the demand itself. On perusal of the order of the Commissioner(Appeals), I find that there is no specific discussion of each of the services on which the credit has been taken to determine whether the same can be treated as input service or not. In fact, as there was no specific submissions before the original authority on this aspect, he should not have embarked on discussing this issue without giving an oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence or document or to cross-examine any witness produced by the appellant; or (b) to produce any evidence or any witness in rebuttal of the evidence produced by the appellant under sub-rule (1). (4) Nothing contained in this rule shall affect the power of the Commissioner (Appeals) to direct the production of any document, or the examination of any witness, to enable him to dispose of the appeal. 7. Further, it is seen that the show-cause notice itself does not list out all the disputed services and uses, phrases like "activities like" and "the input services including". Commissioner (Appeals), according to the ld. DR, has dealt with services which were not even mentioned in the show-cause notice. 8. I find that the show-cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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