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Commissioner of Central Excise, Pune-I Versus M/s. Ganesh Enterprises

2015 (9) TMI 162 - CESTAT MUMBAI

Penalty u/s 77 & 78 - Evasion of duty - Malafide intention - Held that:- Commissioner (Appeals) has discussed in details that regarding the fraud committed by the consultant with the appellant for not depositing service tax in the government's account for which FIR proceedings also initiated against consultant by the department, which clearly shows that it is not the appellant who has committed an offence of non payment of service tax, it is the consultant, who has defrauded them therefore there .....

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ue's appeal is against Order-in-Appeal No. PUN-EXCUS-001-APP-051-14-15 dated 31/7/2014 passed by the Commissioner (Appeals), Central Excise, Pun-1, wherein, Ld. Commissioner (Appeals) dropped the penalty imposed under Section 78 and reduced penalty from 20,000/- to ₹ 500/- imposed under Section 77. Revenue has filed this appeal for restoration of penalty under Section 78 and against reduction of penalty under section 77. 2. Shri. A.B. Kulgod, Ld. Asstt. Commissioner (A.R.) appearing on .....

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ntention to evade service tax. From the entire proceedings, the fact which emerged clearly shows that respondent have been paying amount in cash to the consultant. As per the representation given by the consultant, he submits that it is consultant, who has done fraud with the respondent and not deposited service tax in time with the department. It is his submission that to the effect of this fraud committed by the consultant, department also initiated the criminal proceedings and filed FIR with .....

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submits that entire records was with the consultant and appellant was under bonafide belief that since, entire job of depositing service tax and filing of the returns was assigned to the consultant therefore they are under bonafide belief that the returns might have been filed regularly. In this position, the Commissioner has correctly reduced penalty from ₹ 20,000/- to ₹ 500/- which does not require any interference. 4. I have carefully considered the submission made by both sides .....

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cash payment to their consultant, who was assigned the job for computing the service tax and depositing in the bank and also filing the return periodically. However, consultant has not deposited cash given to him as service tax in the bank and consultant defrauded the respondent, when this fact came to the notice, the department has initiated investigation. Ld. Commissioner in respect of dropping penalties recorded his findings as under: I find that the appellants have claimed that they had appo .....

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to the department or the appellants were colluding with the consultant. The show cause notice states that the department has filed F.I.R. with the police authorities for the fraudulent act on the part of the consultant. The appellants also not been named in the F.I.R. along with the consultant. The Ld. Adjudicating authority has not accepted the plea of the Appellants regarding payment of amount of service tax to consultant and their banafide belief that the consultant has deposited the amount, .....

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