TMI Blog2016 (5) TMI 1244X X X X Extracts X X X X X X X X Extracts X X X X ..... refore the Commissioner (Appeals) has rightly applied the said judgement for waiver of penalty under Section 78. Moreover a mere pendency of Civil Appeal in Atwood's case before the Supreme Court is no ground not to follow a binding precedent. One more aspect to be noted is that during the relevant period, Section 80 was in operation which does not figure in the Central Excise Act, where there is a discretion not to impose penalty when reasonable cause is shown. Therefore, the ends of justice would be met by upholding the order of the Commissioner (Appeals) for the reasons stated above. - Decided against the revenue - Appeal No.ST/41851/2015 - FINAL ORDER No._ 40849 / 2016 - Dated:- 26-5-2016 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew Committee reviewed the order on 31.08.2015 and directed the department to file an appeal against the OIA before this Tribunal, on the ground that the case law M/s. Atwood Oceanics Pacific Ltd. Vs. CST, Ahmedabad 2013 (32) STR 756 (Tri.-Ahmd.) relied upon by the Ld. Commissioner (Appeals) has not been accepted by the department and a civil appeal has been filed in the Honble Supreme Court and the same has been admitted vide C.A. No. D7374/2013 reported in 2014 (34) STR 3172 (SC); that the respondent assessee while filing the appeal before the Ld. Commissioner (Appeals) had only disputed the levy of equal penalty under Section 78 and did not dispute the order confirming the demand by invoking the extended period of limitation. Having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received in India and therefore, the recipient was under the impression that there were no liabilities to pay. The learned Counsel had drawn attention to Ground No.9 of the appeal filed by the Department wherein it was stated that the respondent herein had filed an appeal before the Commissioner (Appeals) only against non-imposition of penalty and not against the order confirming the demand of tax by invoking the extended period of limitation and stated that this was factually incorrect and had drawn my attention to Page No.10 of their appeal filed before Commissioner (Appeals) wherein they had raised a specific contention that there was no suppression; that suppression is a finding which presupposes non-disclosure and the case on hand has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vade payment of tax. With regard to the second issue, the contention of the Counsel for the respondent by reading the allegation from the show cause notice that some of the transactions are not in the nature of donations but given under an obligation to get something in return such as displaying the banner in the sponsors name or entitled to certain privileges is too vague an allegation which cannot stand the scrutiny of law. The show cause notice should clearly spell out the allegations as it is the foundation for any litigation. The allegation as referred supra is too wide and vague and therefore, the complexity involved in the aspect of taxability cannot be ruled out. The fact that the respondent has discharged their tax liability woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een countered by the Revenue stating that the respondents record were not inspected and that Audits were not conducted. The contention of the respondent being that they were under the scrutiny of the LTU which is subject to periodical checks and audits was also not contested to be factually incorrect. In the instant case the respondent could not file the returns on the disputed aspects as they were under a bonafide belief that tax was in fact not payable. In these circumstances, the imposition of penalty is unsustainable. 7. The AR had placed reliance on the judgement of the Honble Supreme Court in the case of Dharmendra Textile Processors reported in 2008 (231) ELT 3 (SC), wherein it was held that the penalty under Section 11AC of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgements relied upon by the Revenue are inapplicable as in the instant case the non-payment of tax was on account of bonafide belief and the Revenue had conducted Audits which would go to show that there was in fact no suppression of facts. On the other hand I find that the judgement of the Tribunal in the case of Atwood Oceanic Pacific Ltd. -Vs- CST 2013 (32) STR 756 (T) is more akin to the facts of the present case and therefore the Commissioner (Appeals) has rightly applied the said judgement for waiver of penalty under Section 78. Moreover a mere pendency of Civil Appeal in Atwoods case supra before the Supreme Court is no ground not to follow a binding precedent. One more aspect to be noted is that during the relevant period, Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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