Mr. Avinash Vasant Shirsath vs Commissioner Of Central Excise, ...

Customs Excise and Service Tax Appellate Tribunal5 May 2015

CitationAPPEAL NO. ST/85780/13

Ratio decidendi

The rule this decision rests on

Where a penalty is sought to be imposed under Section 76 or Section 78 of the Finance Act, 1994, and the show-cause notice discloses no case of concealment or contumacious conduct, the penalty cannot be sustained. Where the tax and interest have been paid before the issue of the show-cause notice, and the notice proposes to appropriate those amounts, the payment made prior to the notice weighs against imposition of the penalties under those provisions.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. IV

APPLICATION NO. ST/MA/ORS/92032/15 APPEAL NO. ST/85780/13

(Arising out of Order-in-Appeal No. AV/(236) 180/2012 dated 08.11.2012 passed by the Commissioner of Central Excise & Customs (Appeals) Aurangabad.)

For approval and signature: Honble Shri Anil Choudhary, Member (Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy : Seen of the order?

4. Whether order is to be circulated to the Departmental : Yes authorities?

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Mr. Avinash Vasant Shirsath

: Appellant

Versus

Commissioner of Central Excise, Aurangabad

: Respondent

Appearance Shri Rajiv Luthia, C.A. : For Appellant Shri S.V. Nair, Asst. Commr. (A.R.) : For Respondent

CORAM:

HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)

Date of Hearing : 05.05.2015 Date of Decision: 05.05.2015

ORDER NO.......................................................

Per: Anil Choudhary:

Heard on miscellaneous application No. ST/MA/ORS/92032/ 15. It has been observed in para 2 of Final order that the proceedings stand abated. The said part is recalled. It is ordered that the late appellant is substituted by his legal heir-his wife Mrs. Jyothi Avinash Shirsath. Appellant prays for deletion of penalty under Section 76 & 78, as their is no case of concealment etc., made out. Further the tax & interest were paid at enquiry stage before issue of show-cause notice. I find that there is proposal in show-cause notice to appropriate the tax & interest already paid. Further no case of contumacious conduct is made out in show-cause notice. In this view of the matter, the penalty under Section 76 & 78 are set aside. Appeal is allowed.

(Pronounced in open Court)

(Anil Choudhary)

Member (Judicial)

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