TMI Blog2008 (8) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... Justice S.N. Jha, President and Shri M. Veeraiyan, Member (Technical) (Final Order No. 204/2008-ST dated. 7.8.2008 certified on 28.8.2008 in Appeal No. ST/229/2007) Shri Alok Kothari, Advocate for the Appellant. Shri A. Jain, DR for the Respondent. [Order per M. Veeraiyan, Member (Technical)] - This is an appeal against the order of the Commissioner (Appeals) No. 101 (GRM) ST/JPR-1/2006 dated 22.11.2006. 2. We have heard both the sides. 3. The relevant facts of the case, in brief, are as follows: a) The appellant is a caterer and has served food and beverages to the employees of M/s EID Parry (India) Ltd., Alwar as per agreement with the said company. The appellant was not having any business premises o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended on 16.6.2005. He is not disputing the tax liability as outdoor catering service with effect from 16.6.2005 after the amendment to the said definition. He submits that for the earlier period, in as much as, they were not having any other premises of their own other than the premises of M/s. EID Parry, Alwar, they should be treated as not rendering outdoor catering services. 4.2 He also made the following additional submissions: a) The service tax is leviable based on actual realization. In this case, the tax has been levied only w.e.f. 10.9.2004. The service tax confirmed includes tax for services rendered from September, 2004 onwards which is not legally correct. b) The authorities below have not given the benefit of cum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt that they should be extended the benefit of cum-duty in tax liability deserves acceptance. Accordingly, we allow this benefit. There is a submission that the tax has been demanded even for the services rendered prior to 10.9.2004. We hold that the same is not permissible. However, we would like the factual position to be verified by the original authority. 6.3 As regards the prayer for setting aside the penalty, we agree that this is a case involving interpretation of law and taking into consideration the entire facts and circumstances and the arguments pleaded on behalf of the appellant in to account, we hold that this is a fit case for extending the benefit under Section 80 of the Finance Act, 1994. 7. In view of the above, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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