TMI Blog2012 (12) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... ed mandamus calling for the records in and connected with the Order-in-Appeal No. 134/2012 (MST), dated 11-10-2012 in A. No. 452/2011(MST), on the file of the 3rd respondent herein and quash the same and direct the said respondent to restore, hear and dispose of the appeal of the petitioner entity against Order-in-Original No. 21/2010 dated 4-3-2010 of the 2nd respondent, on its merits. 2. Hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner did not comply with the said direction of this Court. That order was however later modified, giving liberty to the petitioner to file appeal before the Commissioner of Central Excise (Appeals) - the third respondent herein. It appears the petitioner filed the appeal belatedly and therefore, the Commissioner of Central Excise (Appeals) rejected the appeal stating that the direction of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age and patronage of the software developed by M/s. Galileo India Pvt. Ltd. The Department had alleged that the appellants by continued usage of the software are providing service by promoting the business of M/s. Galileo India Pvt. Ltd. Hence, they are liable to pay Service Tax on the incentive received by them. I find from the records that the Department had not made any effort to prove that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relied upon the case law of Tribunal Bangalore s decision in the case of Kerala Publicity Bureau v. CCE reported in 2008 (9) S.T.R. 101 (Tri.-Bang.). I find that the case law relied upon by the appellant is applicable to them...... 5.3. . . . . . . In fact the amount collected as incentive is in no way connected to the service rendered by the appellant to their clients in providing the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Court is inclined to accept the same and the apology. Accordingly, the impugned order is set aside and the writ petition is allowed directing the Commissioner, Central Excise (Appeals) the third respondent herein, to dispose of the appeal filed by the petitioner on merits, after considering the prima facie case as is prevalent at the time of disposal of the appeal. It is clarified that if ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
