Customs, Excise and Gold Tribunal - Delhi
Urban Improvement Trust vs Commissioner Of Central Excise on 1 March, 2004
Equivalent citations: 2004(169)ELT141(TRI-DEL), 2006[3]S.T.R.248, [2007]8STT241
ORDER S.S. Kang, Member (J)
1. Heard both sides.
2. Appellant filed this appeal against the order-in-appeal whereby the penalty of Rs. 45,400/- was enhanced to Rs. 1,27,300/- by the Commissioner (Appeals-II), Central Excise and Customs, Jaipur.
3. The Commissioner (Appeals) enhanced the penalty after taking into consideration the provisions of Section 77 of the Finance Act, 1994. I find that Section 80 of the Finance Act provides that "Notwithstanding anything contained in the provisions of Sections 76 to 79, 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 course for the said failure".
4. The contention of the appellant is that being a new levy they were not aware of the provisions relating to service tax therefore, they filed returns late. The contention of the appellant is also that where there is a mandatory penalty of equal amount of demand, the assessing authority has discretion to impose lesser amount of penalty. In view of the decision of the Tribunal in the case of Escorts JCB Ltd. v. CCE, New Delhi reported in 2000 (118) E.L.T. 650.
5. In this case the penalty was imposed for filing the returns in respect of service tax after the due date. The adjudicating authority imposed penalty for Rs. 45,400/- under Section 77 of the Finance Act. As the provision under Section 80 of the Finance Act provides that notwithstanding the provisions of Section 77 if delay is explained then the penalty can be waived. Further, the Tribunal in the case of Escorts JCB (Supra) held that the assessing authority has discretion to impose lesser amount of penalty where equal amount of penalty as of demand imposable. In these circumstances, the impugned order is set aside and the appeal is allowed.