Commissioner Of Central Excise & ... vs M/S. Bansod Classes

[Arising out of Order-in- Appeal No. AGS(76)53/2010 dated 22/4/2010 passed by Commissioner (Appeals), Central Excise & Customs, Aurangabad]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

Commissioner of Central Excise & Customs, Aurangabad. : Appellants

VS

M/s. Bansod Classes : Respondent

Appearance

Shri. R.K. Das, Dy. Commissioner(A.R.) for the Appellant None for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 9/1/2015 Date of decision 2/2015

ORDER NO.

Per : Ramesh Nair

The appeal is directed against Order-in- Appeal No. AGS(76)53/2010 dated 22/4/2010 passed by Commissioner (Appeals), Central Excise & Customs, Aurangabad, wherein the Ld. Commissioner (Appeals) maintained the penalty under Section 70, however penalty under Section 77 was reduced to 200/- per day per summons in respect of 4 summons to fixed penalty of Rs. 5000/- each against 4 summons and which comes to Rs. 20,000/-. The Revenue, aggrieved with aforesaid order filed the appeal before this Tribunal for enhancing penalty to Rs. 3,07,400/- at the rate of Rs. 200 per summons from the date of summons till the date of compliance.

2. Shri. R.K. Das, Ld. Dy. Commissioner(A.R.) appearing for the Revenue submits that there is not discretion available to the Ld. Commissioner(Appeals) to reduce the penalty imposed under Section 77(C) III of Finance Act, 1995 therefore order of the Ld. Commissioner(Appeals) is wrong. He prays that the impugned order be set aside and original order be maintained.

3. None appeared for the respondent.

4. I have carefully considered the submission made by Ld. A.R. and perused the record.

5. The Ld. Commissioner (Appeals) in reducing penalty imposed under Section 77(i) (c) (iii) given following findings.

7. Under Section 70 ibid, the provision of the penalty are built in. But under section 77, the provision of imposition of penalty is flexible. Considering the nature of the service provided and the situation through which the service provider is passing, leniency is required to be shown. Moreover, I find that the appellants had already deposited an amount of Rs. 20,000/- towards penalty vide Challan dated 31.03.2010. In view of the above, I order reduction of penalty to Rs. 5000/- each against non appearance to summons dated 19.08.2008, 30.09.2008, 4.12.2008 and 18.1.2009 totally amounting to Rs. 20,000/-. As regards to penalty imposed under Section 70 ibid for delayed filing of returns, I do not find any reason to interfere with the OIO dated 30.11.2009 passed by the Asst. Commissioner.

8. In view of the above, appeal filed by the appellants against order in original No. 46/ST/AC/2009 dated 30/11/2009 passed by the Assti. Commissioner (Service Tax), Cental Excise and Customs, Aurangabad is allowed partially and the said OIO is modified to the extent, as discussed in para 7 above.

9. The subject appeal is disposed off accordingly.

From the above findings of the Ld. Commissioner (Appeals), it is observed that the reasoning given for the reduction of penalty is satisfactory.

The Ld. original authority imposed the penalty under section 77(i) (c)(iii), which is extracted below:-

[SECTION 77. Penalty for contravention of rules and provisions of Act for which no penalty is specified elsewhere. -

(1) Any person,-

(a) who is liable to pay service tax, or required to take registration, fails to take registration in accordance with the provisions of section 69 or rules made under this Chapter shall be liable to pay a penalty which may extend to ten thousand rupees or two hundred rupees for every day during which such failure continues, whichever is higher, starting with the first day after the due date, till the date of actual compliance;

(b) who fails to keep, maintain or retain books of account and other documents as required in accordance with the provisions of this Chapter or the rules made thereunder, shall be liable to a penalty which may extend to [ten] thousand rupees;

(c) who fails to-

(i) furnish information called by an officer in accordance with the provisions of this Chapter or rules made thereunder; or

(ii) produce documents called for by a Central Excise Officer in accordance with the provisions of this Chapter or rules made thereunder; or

(iii) appear before the Central Excise Officer, when issued with a summon for appearance to give evidence or to produce a document in an inquiry, shall be liable to a penalty which may extend to [ten] thousand rupees or two hundred rupees for every day during which such failure continues, whichever is higher, starting with the first day after the due date, till the date of actual compliance;

(d) who is required to pay tax electronically, through internet banking, fails to pay the tax electronically, shall be liable to a penalty which may extend to [ten] thousand rupees;

(e) who issues invoice in accordance with the provisions of the Act or rules made thereunder, with incorrect or incomplete details or fails to account for an invoice in his books of account, shall be liable to a penalty which may extend to five thousand rupees.

(2) Any person, who contravenes any of the provisions of this Chapter or any rules made thereunder for which no penalty is separately provided in this Chapter, shall be liable to a penalty which may extend to [ten] thousand rupees] From the above provisions, it is clear that the penalty of Rs. 200 per day is not in the nature of mandatory. Therefore it is discretion of the officer to reduce the penalty depending upon the nature of the case. I therefore did not find any infirmity in the findings of the Ld. Commissioner (Appeals) given in the impugned order. Therefore, I upheld the impugned order and dismissed the appeal of the Revenue.

(Operative part pronounced in the Court on /2/15)

Ramesh Nair Member (Judicial)

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