GUJARAT UNIVERSITY Vs. COMMISSIONER OF SERVICE TAX, AHMEDABAD

JUDGEMENT

(1.) THE impugned order in the present application is order of the Assistant Commissioner vide which he has quantified the service tax and has imposed the penalties under Sections 76 and 77 of Finance Act, 1994. Learned JDR appearing for the Revenue takes a strong objection to the present appeal inasmuch as the same stand filed before Tribunal against the order of Assistant Commissioner, whereas the same should have been challenged before Commissioner (Appeals).

(2.) LEARNED advocate appearing the appellant submits that the present order stand passed by the Assistant Commissioner in de -novo proceedings, when the matter was earlier remanded by Commissioner (Appeals) for imposition of penalties under Sections 76 and 77 of Finance Act, 1994. They have challenged the earlier order of the Commissioner (Appeals) before Tribunal and the appeal is pending and stay has also been granted partially. As such, he prays that the present stay petition which stand filed without filing any appeal against the order of Assistant Commissioner passed in de -novo proceedings should be tagged with the earlier stay petition and pre -deposit of penalties now quantified by the Assistant Commissioner should be dispensed with.

(3.) WE have considered the submissions made by learned advocate. We have also seen the order passed by the Assistant Commissioner. The same is an order passed by the original adjudicating authority in de -novo proceedings, vide which he has quantified the penalty amount. The said order -in -original No. SD -01/16/AC/GUJ.UNI/09 -10, dt. 2 -2 -10 is a well reasoned order and stands issued in an appealable form. The preamble of said order clearly indicates that the appeal has to be filed before Commissioner (Appeals). We note that the appellant had filed the present stay petition without filing any appeal against said order of the Assistant Commissioner. As per the provisions of Section 35B of Finance Act, 1994, the order passed by Assistant Commissioner is appealable before Commissioner (Appeals) and not before Tribunal. The reasons advanced by the learned advocate are that since the present impugned order stand passed by Assistant Commissioner in de -novo proceedings and they have already challenged the earlier order of Commissioner (Appeals) before Tribunal, the present stay petition should be considered as being a part of the earlier appeal before Tribunal. We do not find any merit in the above arguments. There is no scope for filing appeal or stay petition before Tribunal against the order of Assistant Commissioner which has been passed in de -novo proceedings and for limited purpose of quantification in terms of remand order of Commissioner (Appeals). As already noted, the said order of Assistant commissioner being a detailed and well -reasoned order and having been passed in appealable form, with the preamble directing the appellant to file an appeal there -against before Commissioner (Appeals), we find no reason to entertain the appellants prayer.