Mr. Shashibhusan Pandey vs Commissioner Of Central Excise, Pune
- CitationAPPEAL No.ST/443/11
Ratio decidendi
The rule this decision rests on
The penalty under section 78 of the Finance Act 1994 may be set aside by invoking section 80 of that Act where the assessee has discharged the service tax liability with interest before the show cause notice, and the assessee had a reasonable cause for the failure, here reliance on being engaged in a Multi Layer Marketing Scheme and unawareness of the tax liability, the same circumstances having been accepted in a parallel case involving a co-appellant.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Appeal No. P-III/VM/04/2011 dated 7.1.2011 passed by Commissioner of Central Excise & Customs (Appeals), Mumbai)
For approval and signature:
Honble Mr. M.V. Ravindran, Member (Judicial) and Honble Mr. C.J. Mathew, Member (Technical)
======================================================
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 : No 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?
====================================================== Mr. Shashibhusan Pandey Appellant Vs. Commissioner of Central Excise, Pune Respondent
Appearance:
Shri. Prasad Paranjape, Advocate for Appellant Shri. A. V. Kulgod, Additional Commissioner (AR), for Respondent
CORAM: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical)
Date of Hearing : 19/08/2015 Date of Decision : 19/08/2015
ORDER NO
Per: M.V. Ravindran
This appeal is directed against Order-in-Appeal No. P-III/VM/04/2011 dated 7.1.2011.
2. Heard both sides and perused the records.
3. On perusal of the records we find that the issue involved in this case is regarding the service tax liability on the appellant under the category of Business Auxiliary Services. It is on record that the appellant had discharged the service tax liability along with interest before issuance of show cause notice on being pointed out by the departmental officers.
4. Learned Counsel submits that they are not contesting the tax liability under the Business Auxiliary Services and the interest thereof, but seeking setting aside the penalties imposed under section 78 on the ground that appellant herein has been given the commission for working in the Multi Layer Marketing Scheme and they were not aware of the tax liability. It is also his submission that identical issues in the case of M/s. Namrata Shashibhushan Pandey, this bench vide final order no. A/2406/15/STB dated 21.07.2015 set aside the penalty by invoking the provisions of section 80 and produced the copy of the same.
5. On perusal of the records and the order dated 21.7.2015, of this bench, we find that the issue involved in, the case in hand is the same and in fact the appellant herein is husband of the appellant in the where order is passed on 21.7.2015, we find no reason to deviate from such a view. We set aside penalty by invoking the provisions of section 80 of the Finance Act 1994. Accordingly, we while upholding the service tax liability and the interest thereof; we set aside the penalties imposed by invoking the provisions of section 80 of the Finance Act 1994. The appeal is allowed to the extent of setting aside of the penalty. (Pronounced in Court)
(C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial)
akp 1 3 APPEAL No.ST/443/11
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