COMMISSIONER OF C. EX. Vs. ADHUNIK STEEL LTD.

JUDGEMENT

(1.) THE applicant filed Misc. application to amend the prayer in application for recalling of the Tribunal's final order allowing the appeal filed by the revenue in the absence of the applicant. The prayer is allowed and in view of the reasons explained in the application, the final order passed by the Tribunal is recalled and matter is reheard.

(2.) THE contention of the revenue is that the respondent are providing the service as clearing and forwarding agent as relied upon the decision of the Larger Bench in the case of Medpro Pharma Pvt. Ltd. v. Commissioner reported in 2006 (3) S.T.R. 355. In reply to the arguments raised by the revenue, the contention of the respondent is that regarding demand, they have no case as the issue is decided in favour of revenue by the Tribunal. The only contention raised by the respondent is that they are not liable for any penalty in view of the fact that the Tribunal in the case of Mahavir Generics v. CCE held in favour of assessee and the Commissioner set aside the demand of service tax on the ground that the respondents are not providing any service as clearing and forwarding agent relying upon this decision of the Tribunal. The respondent relied upon the decision of the Tribunal in the case of Medpro Pharma Pvt. Ltd. v. CCE Chennai reported in 2006 (4) S.T.R. 322 where the Tribunal after taking into consideration the provision of Section 80 of the Finance Act set aside the penalty. The Tribunal in the case of Medpro Pharma Pvt. Ltd. (supra) held that in view of the Section 80 of the Finance Act which provides that "no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure".

(3.) WE find that in the present case as earlier view taken by the Tribunal was in favour of the respondent, therefore, it is not a fit case for imposition of any penalty. The demand of service tax is confirmed and respondents are not liable for penalty. The appeal filed by the revenue is allowed as indicated above.