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TMI Blog2015 (10) TMI 1732X X X X Extracts X X X X X X X X Extracts X X X X ..... was done to enrich himself – Appellant discharged entire service tax liability and interest thereon - Question of vicarious liability on part of Appellant does not arise as consultant was not appointed for any mis-representation – Reports prepared by Consultant and signed by appellant that they were correct – Penalty imposed not sustainable - Decided against the Revenue. - Appeal No. ST/239/11 - Final Order No. A/3214/2015-WZB/STB - Dated:- 30-9-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Anupam Dighe, Advocate with Ms Chandani Tanna, Advocate : For The Petitioner Ms. Vinitha Sekhar, Dy. Commr. (AR) : For The Respondent ORDER Per: M.V. Ravindran This appeal is direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant and used to fabricate challans by showing more amounts paid towards the service tax and used to pocket the difference amounts. It is his submission that appellant has discharged the entire service tax liability and the interest thereof as has been worked out based upon the statement of Mr. Deepak Joshi. It is his submission that appellant is not contesting the service tax liability but is seeking setting aside the penalties imposed on the ground that they are in fact hurt by the action of the Consultant. He would submit that the appellant now produces the copy of the cash book for the relevant period which indicates withdrawal of cash from the bank for paying service tax and duly certified by the Chartered Accountant. He would submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Service Tax 2015 (38) STR 14 (Guj.). It is also her submission that the vicarious liability of any payment of service tax and interest thereof lies on the appellant. For this purpose she would read Section 238 of the Indian Contract Act and submit that appellant is liable to be penalized for mis-representation or fraud by agents. It is her submission that this view has been upheld by the Hon ble Bombay High Court in the case of V.S. Ubhayakar vs. Directorate of Enforcement 2012 (282) ELT 209 (Bom.). She would submit that the appellant had signed the ST-3 returns wherein there was a declaration that the facts and figures shown in the tax returns were correct. 5. Considered the submissions made by both sides and perused the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates recording of an amount as payment of service tax. The said amounts were tallied by us with the amounts showing in paragraph 4 of the impugned order and the figures are identical. It can be presumed that the appellant had withdrawn the cash and given the same to the Consultant for discharging the service tax liability. It is also on record that the Consultant whose statement was recorded by the authorities indicates that he had been playing fraud of these amounts in respect of various other assesses also. 6.2 We find strong force in the contentions raised by the learned Counsel that the activity of the Consultant to embezzle the amount fraudulently cannot be held as has been done with the knowledge of the appellant herein. The f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed him for making any mis-representation or to commit fraud that also for the Consultants own benefit. In view of the above, the question of vicarious liability on the part of the appellant does not arise. 6.4 As regards the decision relied upon by the learned D.R. in the case of Indsur Global Ltd (supra), we find that in that case the Hon ble High Court of Gujarat was considering the appeal of the assessee therein in which the appellant could not have had reasonable cause for the failure of discharge of service tax liability, what would constitute reasonable failure in a given case was held as essentially be a question of fact. In the case in hand the reasonable cause could be that in favour of the appellant as he had every reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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