2008 (8) TMI 67

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....r-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 not exceed the amount of service tax due from the appellant. Penalty of Rs. 1,000/- under Section 77 for non-filing of ST-3 return was alsoimposed. 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 the....

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....ervice 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 service tax component. The original adjudicating authority will decide the matter afresh including the imposition of penalty and interest after granting the appellant an opportunity of personal hearing. Appeal is allowed by way of remand." 3. The appeal was thus allowed by way of remand. On remand, the Assistant Commissioner passed the impugned order which was upheld by the Commissioner (App....

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....missioner 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 entitled to challenge the imposition of penalty altogether and seek its waiver. It may be mentioned that under Section 80 of the Finance Act, notwithstanding the provisions of Sections 76, 77 or 78, penalty may not be imposed for failure referred to in those provisions if the assessee proves that there was reasonable cause for the failure. In terms of the remand order it was thus open to the adju....