CESTAT, BANGALORE BENCH
Barbwire Security Services
Commissioner of Central Excise
Stay Order No. 1115 Of 2012
Final Order No. 425
Stay Application No. 1814 Of 2011
Appeal No. St/2916 Of 2011
Date of Pronouncement – June 28, 2012
P. G. Chacko, Judicial Member
This application filed by the appellant seeks waiver and stay. However, in the impugned order, we have not come across any quantified demand of tax or any quantified penalty on the appellant. Further, after hearing both sides, we have found a case fit for remand. Accordingly, we take up the appeal itself for hearing and disposal.
2. In adjudication of a show-cause notice which had demanded service tax and education cesses totaling to Rs. 62,259/- from the assessee under Section 73 of the Finance Act, 1994 and interest thereon under Section 75 of the Act and had also proposed penalties on the party under Sections 76 and 78 of the Act, the original authority confirmed demand to the extent of Rs. 56,510/-with interest thereon against the assessee, and appropriated their full payments towards the demands so confirmed, but refrained from imposing any penalty on them. The order-in-original was reviewed in the department and an appeal accordingly filed with the Commissioner (Appeals). In that appeal, the department wanted upward revision of the assessee’s tax liability and also wanted penalties to be imposed on the assessee under Sections 76, 77 & 78 of the Act. The learned Commissioner (Appeals) passed the impugned order on the department’s appeal. The operative part of the impugned order indicates that the appeal filed by the department against the order-in-appeal stands allowed. However, in the body of the impugned order, we have not found any revised amount of service tax and education cess’es determined by the Commissioner (Appeals), nor there any quantified penalty under Section 78 of the Finance Act, 1994. There is no indication of other penal provisions of the Act having been invoked by the Commissioner (Appeals). The absence of mention Section 77 in the impugned order is justifiable though, in as much as this provision was not invoked in the show-cause notice.
3. When the department wanted the tax liability of the assessee to be revised, it was incumbent on the appellate authority to record a clear finding and to spell out in quantitative terms what should be the correct tax liability of the assessee. Further, when the department wanted the assessee to be penalised under the provisions invoked in the show-cause notice, again, it was incumbent on the appellate authority to consider the plea and, in the event of the assessee being found liable to any such penalty, determine the quantity of the penalty. None of these is forthcoming in this case. Needless to say that we are unhappy over the manner in which the impugned order was passed.
4. We, therefore, set aside the impugned order and allow this appeal by way of remand with a request to the Commissioner (Appeals) to pass fresh speaking order on all the issues raised in the department’s appeal after hearing both sides, having regard to the observations made herein. The stay application also stands disposed of.