SATISH KUMAR MITTAL, J. - (1.) THIS order shall dispose of Central Excise Appeal Nos. 169 of 2006 and 93 of 2007, as in both these appeals, not only the common questions of facts and law are involved, but in Central Excise Appeal No. 93 of 2007, the CESTAT has decided the appeal by following its earlier decision in the case of Onkar Travels (P) Ltd. (against which the Central Excise Appeal No. 169 of 2006 has been filed). The facts are being taken from Central Excise Appeal No. 169 of 2006.
(2.) IN the present case, Onkar Travels (P) Ltd., respondent herein, is a holder of certificate of registration in Form ST -2 under s. 69 of the Finance Act, 1994 (hereinafter referred to as 'the Act') in the category of air travel agent. The the ST -3 returns filed were assessed finally by the Superintendent of Service -tax. Subsequently, a show -cause notice was issued by the Dy. Commr. of Service -tax under s. 74 of the Act to enhance the assessment on the allegation that Division, Jalandhar, confirmed the demand of Rs. 91,858 and also imposed a penalty of Rs. 1,000 upon the respondent.
(3.) FEELING aggrieved against the said order, the respondent filed an appeal before the Commr. (A), Central Excise, imposing of penalty of Rs. 1,000 on the respondent by the adjudicating authority, was upheld. Still feeling aggrieved against the said order, the respondent filed an appeal before the CESTAT, New Delhi. The Tribunal has allowed the said appeal, while observing that provision of s. 74 of the Act, which pertains to rectification of a mistake, is not applicable, in the facts and circumstances of the case, as there is no apparent mistake in the assessment, which has become final under s. 71 of the Act. Against the said order of the Tribunal, the instant appeal has been filed by the Department, in which it has been claimed that the following three substantial questions of law are arising from the order of the Tribunal : "(i) Has the Tribunal not committed grave error in arriving at the conclusion that the Department did not choose to file appeal before the CIT(A); when as per s. 85 of the Finance Act 'any person' does not include the Department; has the opportunity for rectification of mistake and revision (under this section) been taken ? (ii) Whether the action of Department i.e. issue of show -cause notice against improper/faulty assessment order and late decision was not in order ? (iii) Whether inadvertent mentioning of s. 74 in place of s. 73 in the show -cause notice can deprive the Revenue of the legal demand when the Tribunal in the instant order has nowhere questioned this legality demand on any other ground - ;