CCE Vs. PEARL SHIPPING AGENCIES

JUDGEMENT

(1.) APPEAL No. ST/540/2010 is by the department against the order of the Commissioner (Appeals) No. 189/10 dated 31.05.2010. The cross -objection No. ST/CO/40/10 is connected to this appeal.

(2.) HEARD the Ld. SDR. None appears for the Respondent. There is a letter dated 03.02.11 from the Respondents, requesting decision based on the submissions made in cross -objection. The Respondents were issued a show cause notice dated 22.11.07, demanding service tax of Rs. 1,96,358/ - on the amount received as sub agents commission during the period from 01.10.02 to 31.03.06 and proposing imposition of penalties. The Respondents filed reply dated 18.01.08, contesting the demand and submitted that the service tax was payable by the main service provider and they relied on Boards circulars particularly Circular No. 96/7/07 -TRU dated 23.08.07. The original authority has confirmed the demand of service tax as proposed in the show cause notice along with interest and imposed penalties under Section 76, 77 & 78 of the Finance Act, 1994. On appeal by the party, the Commissioner (A) set aside the order of the original authority and remanded the matter to the original authority with the following findings and observations:

(3.) LD . SDR submits that subsequent to the amendment to Section 35A (3) of Central Excise Act, w.e.f. 11.05.01, deleting the power of remand, the Commissioner (A) should not have remanded the matter. He also relies on the decision of the Hon'ble Supreme Court in the case of MIL India Ltd. v. CCE, Noida reported in : 2007 (210) ELT 188 (S.C.), in support of his contention.