2012 (9) TMI 104

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..... itten submissions and have made a prayer to decide the issue on merits. Accordingly, we have heard ld. A.R. 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 o .....

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..... e entitled to the benefit of small scale Notification 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 mala fide 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 phone .....

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..... ppellants on the difference of taxable value 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 t .....

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..... f the said Company, I observe that the adjudicating 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 .....

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..... acts should have been got verified by him from 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-consideratio .....

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