JUDGMENT : M.R. Shah, J. 1. ADMIT. Shri Ankit Shah, learned advocate waives service of notice of admission on behalf of the Opponent-Revenue. 2. In the facts and circumstances of the case and for the reasons stated hereinbelow, as this Court proposes to remand the matter to the Customs, Excise & Service Tax Appellate Tribunal, Ahmedabad to consider the legality and validity of the order passed by the Adjudicating Authority imposing penalty under Section 76 and 78 of the Finance Act, 1994 as imposed by the Adjudicating Authority on the entire amount of tax demand i.e., Rs. 52,57,748/-, with the consent of the learned counsel appearing on behalf of the respective parties, the present Tax Appeal is taken up for final hearing today. 3. Facts leading to the present Appeal in nutshell are as under: "3.1 That there was a service tax demand of Rs. 52,57,748/- under Section 66 of the Finance Act, 1994 read with Section 73 [2] thereof and Rule 6 of the Service Tax Rules, 1994 against the appellant herein, with penalty and interest on the said service tax demand of Rs. 52,57,748/-. That, before the order-in-original came to be passed, the appellant admitted the service tax demand/liability to the extent of Rs. 47,68,300/- and in fact, had already paid the said amount on different dates under TR-6. That, vide order-in-original dated 21st February 2007, the Adjudicating Authority i.e., the Commissioner of Central Excise & Customs, Vadodara-I confirmed the service tax demand of Rs. 52,57,748/- under Section 66 of the Finance Act, 1994 read with Section 73 [2] thereof and Rule 6 of the Service Tax Rules, 1994. However, as against the liability as above, the assessee had already paid an amount of Rs. 47,68,300/-, the Adjudicating Authority appropriated the said amount towards confirmed tax demand of Rs. 52,57,748/- and directed it to pay the remaining sum of Rs. 4,89,448/-. That, the Adjudicating Authority also directed the appellant to pay interest at the prescribed rate on the service tax which was short paid/late paid in terms of Section 75 of the Finance Act, 1994. The Adjudicating Authority also passed an order imposing penalty of Rs. 100/- per day for each day during which the appellant [Messrs. SCI International Securities Limited] failed to pay the service tax under Section 76 of the Finance Act, 1994, from the date, the service tax was payable by them. The Adjudicating Authority also passed an order imposing penalty of Rs. 100/- per day for each day during which the appellant [Messrs. SCI International Securities Limited] failed to pay the service tax under Section 76 of the Finance Act, 1994, from the date, the service tax was payable by them. The Adjudicating Authority also imposed penalty of Rs. 1,000/- on the appellant [Messrs. SCI International Securities Ltd] under Section 77 of the Finance Act, 1994. The Adjudicating Authority also imposed penalty of Rs. 52,57,748/- on Messrs. SCI International Securities Limited [appellant herein] under Section 78 of the Finance Act, 1994. 3.2 Feeling aggrieved and dissatisfied with the order-in-original passed by the adjudicating authority, the assessee preferred appeal before the learned Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad [hereinafter referred to as, "the CESTAT"]. It appears that at the time of hearing the appeal before the learned CESTAT, nobody remained present on behalf of the appellant-assessee, and therefore, the learned Tribunal proceeded ex parte and heard the appeal ex parte on the basis of material available on the record as well as written submissions. Considering the fact that the appellant had already paid an amount of Rs. 47,68,300/-, accepting the liability to the aforesaid extent, the learned Tribunal observed that the dispute is only with respect to the balance amount of tax alongwith interest and penalties, and therefore, by an Order dated 3rd November 2015, the learned Tribunal remanded the matter to the adjudicating authority by directing the adjudicating authority to re-examine the demand of the balance amount of tax of Rs. 4,89,448/- alongwith interest and penalties. 3.3 At this stage, it is required to be noted that it was not clarified by the learned Tribunal that the remand would be with respect to the penalty imposed on the entire amount of Rs. 52,57,748/- or not? And, there was some ambiguity in the order, as in the operative portion of the order, the order of remand was with respect to the demand of balance amount of Rs. 4,89,488/- alongwith interest and penalties [meaning thereby the interest and penalties of Rs. 4,89,448/- only] and as the appeal was against the penalties imposed under Sections 76 and 78 of Finance Act on the entire demand of service tax i.e., Rs. 52,57,748/-, the appellant preferred Misc. 4,89,488/- alongwith interest and penalties [meaning thereby the interest and penalties of Rs. 4,89,448/- only] and as the appeal was against the penalties imposed under Sections 76 and 78 of Finance Act on the entire demand of service tax i.e., Rs. 52,57,748/-, the appellant preferred Misc. Application for Rectification of Mistake before the learned Tribunal pointing out that in the Appeal, the appellant had also challenged the penalties imposed under Sections 76 & 78 of the Finance Act, 1994 on the entire amount of Rs. 52,57,748/-, and while disposing of the Appeal and passing of an Order dated 3rd November 2015, there is no discussion with respect to penalty imposed under Sections 76 and 78 of the Finance Act, 1994 with respect to the remaining amount of Rs. 47,68,300/- and therefore, it was requested to restore the Appeal to consider the dispute with respect to the penalty imposed under Sections 76 & 78 of the Finance Act, 1994 on the remaining balance amount of Rs. 47,68,300/-. That, again without deciding the said question, the learned Tribunal has rejected the Rectification of Mistake Application, giving rise to the present Appeal by the appellant." 4. Having heard learned counsel Shri Dhaval Shah appearing on behalf of the appellant and Shri Ankit Shah, learned counsel for the respondent-Revenue and on perusal of the judgment and order of the learned CESTAT dated 3rd November 2015 and the impugned Order passed on the Misc. Application for Rectification of Mistake and the grounds stated in the memo of appeal as well as those raised in the RoM application, it appears that the appellant challenged imposition of penalties - both under Sections 76 & 78 of the Finance Act, 1994 on the entire amount of Rs. 52,57,748/-. However, the learned Tribunal, considered the dispute with respect to the interest and penalties on the remaining sum of Rs. 4,89,448/- and had not considered anything on merits with respect to the penalty imposed by the Adjudicating Authority on the remaining amount of Rs. 47,68,300/-. Though it was pointed out in the Application for Rectification of Mistake, the learned Tribunal has still not considered the same. 4,89,448/- and had not considered anything on merits with respect to the penalty imposed by the Adjudicating Authority on the remaining amount of Rs. 47,68,300/-. Though it was pointed out in the Application for Rectification of Mistake, the learned Tribunal has still not considered the same. Under the circumstances, there was an error apparent on the face of the record, while disposing of the main appeal in not considering the legality and validity of the order-in-original imposing penalties under Sections 76 & 78 of the Finance Act, 1994 on the entire amount of Rs. 52,57,748/- and the appeal was restricted to an amount of Rs. 4,89,448/- and penalties imposed on the same. The learned Tribunal ought to have restored the appeal with respect to the penalties imposed under Sections 76 & 78 of the Finance Act, 1994 on the remaining sum of Rs. 47,68,300/-. 5. Under the circumstances, to the aforesaid extent, the impugned judgment and order passed by the learned Tribunal deserves to be quashed and set-aside and the matter is required to be remanded to the learned CESTAT to decide and dispose of the Appeal qua legality and validity of the order in original passed by the Adjudicating Authority imposing penalties under Section 76 & 78 of the Finance Act, 1994 on the remaining amount of Rs. 47,68,300/- also. 6. In view of the above and for the reasons stated above, the present Appeal succeeds in part. The impugned judgment and order passed by the Customs, Excise & Service Tax Appellate Tribunal, West Zonal Bench, Ahmedabad in Appeal No. ST/79/2007 is hereby quashed and set-aside and the matter is remanded to the learned Tribunal to consider the legality and validity of the order-in-original passed by the Adjudicating Authority imposing penalty under Sections 76 & 78 of the Finance Act, 1994 imposed on the remaining amount of Rs. 47,68,300/-. However, it is observed and made clear that we have not expressed anything on merits - whether in the facts and circumstances of the case, the penalties - both imposed under Sections 76 and 78 of the Finance Act, 1994 were leviable or not, and/or whether in the facts and circumstances of the case, the decision of this Court rendered in the case of Raval Trading Company v. Commissioner of Service Tax, 2016 [42] S.T.R 210 [Guj.] shall be applicable or not. It is for the learned Tribunal to consider the same in accordance with law and on merits. The aforesaid exercise shall be completed by the learned CESTAT within a period of six months from the date of receipt of the present order. 7. Present Tax Appeal is partly allowed to the aforestated extent. No costs.