Commissioner of Central Excise Vs. Madhuri Travels - Court Judgment

Excerpt:

.....magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - (i) whether in the facts and circumstances of the case and in law the hon'ble cestat is justified in reducing the penalty in the case of the respondent who has not been able to prove that there was reasonable cause for the failure ? (ii) whether in the facts and circumstances of the case and in law the hon'ble cestat is justified in reducing the penalty to the level below the minimum penalty prescribed under the law, which comes to rs.order1. revenue has come in appeal on the following substantial questions of law:(i) whether in the facts and circumstances of the case and in law the hon'ble cestat is justified in reducing the penalty in the case of the respondent who has not been able to prove that there was reasonable cause for the failure ?(ii) whether in the facts and circumstances of the case and in law the hon'ble cestat is justified in reducing the penalty to the level below the minimum penalty prescribed under the law, which comes to rs. 40,364/-?before the tribunal, the only issue canvassed was whether the commissioner (appeals) has a power to reduce the penalty imposed under section 76. question as now framed, therefore, would not arise from the order of the tribunal. even otherwise considering section 80 of the finance act, 1994, it is clear that there is power in the authority on showing reasonable cause, not to impose penalty or reduce the amount of penalty. that issue is fairly covered by the order of this court in commissioner of central excise & customs, nashik v. d.r. gade : 2008 (9) s.t.r. 348 (bom.).2. considering the above, there is no merit in the appeal which is accordingly dismissed.

Judgment:

ORDER

1. Revenue has come in appeal on the following substantial questions of law:

(i) Whether in the facts and circumstances of the case and in law the Hon'ble CESTAT is justified in reducing the penalty in the case of the Respondent who has not been able to prove that there was reasonable cause for the failure ?

(ii) Whether in the facts and circumstances of the case and in law the Hon'ble CESTAT is justified in reducing the penalty to the level below the minimum penalty prescribed under the law, which comes to Rs. 40,364/-?

Before the Tribunal, the only issue canvassed was whether the Commissioner (Appeals) has a power to reduce the penalty imposed under Section 76. Question as now framed, therefore, would not arise from the order of the Tribunal. Even otherwise considering Section 80 of the Finance Act, 1994, it is clear that there is power in the authority on showing reasonable cause, not to impose penalty or reduce the amount of penalty. That issue is fairly covered by the order of this Court in Commissioner of Central Excise & Customs, Nashik v. D.R. Gade : 2008 (9) S.T.R. 348 (Bom.).

2. Considering the above, there is no merit in the appeal which is accordingly dismissed.