TMI Blog2008 (8) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... 08-SM(BR) - Dated:- 22-8-2008 - Justice S. N. Jha, President Appeal No. (Final Order No. 1302/2008-SM(BR) dt. 22.8.2008 certified on 22.9.2008 in Appeal No. ST/280/2008-SM(BR)) Shri Alok Arora, Adv. for Appellant. Shri R. K. Verma, DR for Respondent. [Order per Justice S. N. Jha, President] - This appeal by the assessee is directed against the order-in-appeal upholding the order-in-original of the Assistant Commissioner with modification. The Assistant Commissioner had confirmed demand of service tax of Rs. 2,36,114/- with interest thereon under Section 75 and imposed penalty at the rate of Rs. 200/- every day for default of payment of service tax under Section 76 (of Finance Act, 1994) directing that the penalty shall n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities that they have realized only the gross amount charged by them in the invoices, though they have paid service tax calculated on these invoices they have not received any payment of this from their client. I find there is a force in the appellants' contention that if service tax is to be paid, it has to be worked out on the basis of gross amount received by them as being inclusive of service tax. Since this has not been considered by lower authorities the matter should be remanded back to the adjudicating authority. 6. Accordingly, the impugned order is set aside and the matter is remanded back to the original adjudicating authority to consider the plea of the appellant as regard gross amount received by them being inclusive of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such, the authorities below were fully justified in passing the impugned orders. 5. The only point for consideration is whether the imposition of penalty in the manner stated above is proper and justified. I find force in the submission of the appellant that having not challenged the earlier order of the Commissioner (Appeals) dated 30.7.2003, the quantum of penalty as ordered by the Commissioner became final, so far as the Revenue is concerned. Failure to challenge any order amounts to acquiescence or acceptance of correctness of the decision. It is true that the Tribunal had directed to consider the matter afresh including imposition of penalty but this only means that the appellant - the person aggrieved before the Tribunal-was en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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