2012 (11) TMI 433 - HC - Service Tax

Whether an order of penalty could have been passed against the appellant without setting aside the finding of absence of intention Held that - Intention of evasion was not present in the matter - There is no effort by both these Authorities to consider the correctness of the finding or then its impact, in so far as the imposition of penalty or its quantum is concerned - order passed by the CESTAT 2011 (1) TMI 736 - CESTAT, MUMBAI quashed and set aside - Appeal is thus partly allowed

Summary

Issues:
1. Whether an order of penalty could have been passed against the appellant without setting aside the finding of absence of intention by the Assistant Commissioner of Central Excise.

Analysis:
The High Court considered the substantial question of whether a penalty order could be issued without addressing the absence of intention as found by the Assistant Commissioner. The appellant's counsel argued that the Commissioner of Appeals and the CESTAT did not delve into the impact of the absence of intention in their decisions, despite the issue being raised. The CESTAT only reduced the penalty amount without addressing this crucial aspect. The appellant relied on various judgments emphasizing the importance of intention in penalty proceedings.

The Respondent argued that the appellant received payment from the original employer but failed to clear the tax due within the stipulated time, regardless of the payment. The Assistant Commissioner's order had explicitly stated the absence of intention for evasion. However, both the Commissioner of Appeals and the CESTAT did not assess the correctness of this finding or its relevance to the penalty imposition. The Court acknowledged the presence of necessary facts on record but declined to scrutinize the Assistant Commissioner's findings, highlighting the need to focus solely on substantial legal questions.

The Court ultimately quashed and set aside the impugned order by the CESTAT and directed a fresh consideration of the appeal in accordance with the law. The case was restored to the CESTAT's file for reevaluation, with the parties instructed to appear before the Tribunal on a specified date. The appeal was partly allowed, with no costs imposed on either party.