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TMI Blog2020 (2) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... nch, Kolkata in ST Appeal No. 198/2008 and ST Appeal No. 210/2008 have been assailed by the appellant in this appeal filed under Section 35G of the Central Excise Act, 1945. 3. At the very outset, it would be apposite to mention herein that by filing only one appeal, the appellant has assailed the common judgment and order dated 13-12-2018 of the learned CESTAT disposing of both the appeals pending before it. However, taking note of the submission of Mr. Chopra that he would have no objection if the appellant is allowed to assail the common judgment and order passed by the learned CESTAT by filing a composite appeal, the issue of maintainability of the appeal stands resolved and therefore, we proceed to dispose of the appeal on merit. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65,000/-. By the order dated 28-08-2008, the Commissioner of Central Excise had also imposed penalty of Rs. 2,77,65,000/- upon the respondent by invoking the jurisdiction under Section 74 of the Finance Act, 1994. Thus, the original demand of Rs. 3,47,49,000/- raised in the Show Cause notice dated 28-03-2003 was reduced by the Commissioner to Rs. 2,77,65,000/- for the reasons recorded in the order. But at the same time, heavy penalty of equal amount was also imposed upon the respondent. 6. The operative part of the order dated 28-08-2008 is reproduced herein below for ready reference:- "ORDER 6.1 Having regards to above discussion and findings, I order confirmation of the demand and recovery of service tax of Rs. 2,77,65,000.00 (Rupee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual receipts and not the gross receipts." 10. Mr. Keyal, learned ASGI has argued that confusion, if any, in the Show Cause notice dated 28-03-2003 was created purely on account of non-cooperation of the BSNL authorities inasmuch as, when the assessing officers had examined the books of account and records so as to assess the actual taxable receipt of the services coming under the purview of Finance Act, 1994 for the purpose of recovery of service tax, such documentary evidences were not made available to the officials so as to correctly assess the amount of taxable receipt. However, submits Mr. Keyal, even if it is assumed that the Show Cause notice dated 28-03-2003 had raised erroneous demand, even then, the learned CESTAT did not have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave also bestowed our anxious consideration on the submission made by the learned counsel for both the parties. 13. As noticed above, the Central Excise Department had issued Show Cause notice dated 28-03-2003 raising a demand of Rs. 3,47,49,000/- on account of default allegedly made by as many as four different SSAs viz. M/s Guwahati SSA, M/s Jorhat SSA, M/s Silchar SSA and M/s Nagaon SSA. From a perusal of the Show Cause notice, it is evident that each of the four SSAs were maintaining separate accounts of "gross receipts" and the demand of the Central Excise Department also pertains to the individual SSAs based on the records maintained by them. However, there is no indication in the Show Cause notice dated 28-03-2003 as to what was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed the demand by reducing the amount from Rs. 3,47,49,000/- to Rs. 2,77,65,000/- but such reduction is merely on account of exclusion of claim of service tax on account of GMT, Silchar and GMT, Jorhat for the period from 01-12-1997 to 30-06- 1999. Save and except the above, there is no adjudication as to whether, the demand of Rs. 3,47,49,000/- is on the basis of gross receipt on account of "taxable services" or it includes the entire gross receipt of SSAs including the "non-taxable services". 16. A perusal of the impugned judgment and order dated 13-12-2018 passed by the learned CESTAT also goes to show that in order to figure out the liability of the respondent, the learned Tribunal had carried out re-conciliation of the account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment of the service tax payable by the department on the basis of re-conciliation of the account produced before it for the first time by the BSNL and thereafter, upon obtaining certificate from an independent Chartered Accountant, it has determined the service tax component payable by the respondent. In other words, by the impugned order dated 13-12-2018, the learned CESTAT had for the first time carried out assessment of the tax liability of the respondent on the basis of the documents and records made available before it and thereafter, arrived at a conclusion that the impugned order dated 28-08-2008 was not sustainable in law. 18. Section 35C of the Central Excise Act, 1944 confers jurisdiction upon the Appellate Tribunal to p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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