CESTAT, NEW DELHI BENCH
Commissioner of Central Excise, Chandigarh
FINAL ORDER NO. 55166 OF 2013
STAY ORDER NO. 55310 OF 2013
SERVICE TAX C.O. NO. 246 OF 2009
SERVICE TAX STAY NO. 795 OF 2012
APPEAL NO. ST/637 OF 2009
JANUARY 9, 2013
D.N. Panda, Judicial Member – While revenue is in appeal against the appellate order with the grievance that penalty under section 76 is also leviable alongwith section 78 of the Finance Act, 1994, assessee has come with cross-objection raising the question of valuation and taxability. Added to this, there is a stay application by the Revenue. On the previous occasion we ordered very clearly that all the three proceedings shall be taken up for disposal today. Since the appeal of revenue is taken up for disposal, the stay application does not require further consideration, accordingly that is disposed.
2. So far as the appeal of the revenue is concerned, we do not approve simultaneous penalty to be ordered under sections 76 and 78 of the aforesaid Act. Therefore, we agree with the ld. Commissioner (Appeals) to the extent of waiving the penalty under section 76 by him and his order is approved.
3. So far as the cross-objection of the respondent assessee is concerned, we do not find merit on valuation issue when discussion made by the ld. Commissioner (Appeals) in para 6.2 is read. The respondent assessee claims cum-tax benefit. This point does not need further consideration at this stage for no evidence led to show that the gross value was inclusive of service tax. So far as the taxability is concerned that was not before ld. Commissioner (Appeals). Such issue not been raised nor decided no pleading at this stage is entertainable in second appeal. Cross-objection is dismissed accordingly.
4. In the result all the three proceedings come to an end.