BHAGWATI SECURITY SERVICES Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) 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/ - everyday for default of payment of service tax under Section 76 (of Finance Act 1994) directing that the penalty shall not exceed the amount of service lax due from the appellant. Penalty of Rs. 1,000/ - under Section 77 for non -filing of S.T. -3 return was also imposed. By the order -in -appeal, the Commissioner (Appeals) reduced the demand by Rs. 11,244/ - directing that the same may be adjusted against interest and penalty. The penalty under Section 76 was also reduced to Rs. 100/ - instead of Rs. 200/ - per day. With these modifications, order of the Assistant Commissioner was upheld.

(2.) IT may be stated here that the duty demand was earlier adjudicated by the Deputy Commissioner vide order dated 24 -9 -2002 holding the appellant liable to pay service tax of Rs. 2,36,114/ - under Section 68 and penalty of Rs. 4,000/ - under Section 77, besides interest in the manner detailed in the order. On appeal by the assessee -appellant, the Commissioner (Appeals) vide his order dated 30 -7 -2003 reduced the penalty to Rs. 20,000/ - under Section 76. The impugned order of the Deputy Commissioner was otherwise upheld. The appellant filed appeal in the Tribunal bearing Appeal No. 38/2003 -SM (BR) which was decided by a Single Member Bench vide order dated 12 -6 -2006, 2006 (3) S.T.R. 762 (Tri. -Del). The Tribunal found force in the appellant's contention that the service tax is to be worked out on the amount received by them inclusive of service tax. The Tribunal passed the following order:

(3.) ON behalf of the Revenue, the learned DR submitted that the entire order of the authorities below stood set aside by the Tribunal with direction to decide the matter of penalty afresh including imposition of penalty, and therefore, the issue was wide open and as such, the authorities below were fully justified in passing the impugned orders.