ORDER
T. Anjaneyulu, Member (J)
1. Heard both sides.
2. At the stage of hearing the stay application, the appeal is heard as the issue involved in the appeal and stay application is one and the same.
3. M/s. Kikabhai Enterprises, was providing services of clearing and forwarding agent. They provided services to Killick Nixon Ltd., (Formerly known as Snowcem India Ltd.) and had failed to comply with the provisions of Service Tax Act in filing the return and payment of tax. On the basis of intelligence collected by the Superintendent (Preventive) and his staff, Central Excise and Customs Hdqrs., Nasik, it revealed that the appellants had failed to pay the Service Tax amounting to Rs. 59,573/- (Rupees Fifty-nine Thousand Five Hundred Seventy-three only) during the period 1-9-1999 to 31-3-2003. Further, the appellants did not get registration of their unit under the Service Tax Act. Therefore, the authorities concerned booked a case under the provisions of relevant provisions under Sections 68, 69, 70, 76, 77 and 75A of the Finance Act, 1994. The appellants have fully deposited the Service Tax of Rs. 59,573/- (Rupees Fifty-nine Thousand Five Hundred Seventy-three only) on 19-6-2003. Thereafter a Show Cause Notice dated 18-7-2003 was issued therein asking them as to why the Service Tax payable by them under Section 73(a) should not be adjusted against the amount recovered, interest should not be recovered under Section 75 and why penalty for contravention of the provisions of Sections 68 and 70 of Chapter V of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as “the said Act”) should not be imposed under Sections 76 and 77. On adjudication of the matter, the demand of the Service Tax has been confirmed apart from imposition of penalty of Rs. 1000/- for non-filing the return on due date, Rs. 6000/- for nonpayment of Service Tax on due date and Rs. 500/- for non-obtaining of Service Tax Regn., under Sections 76, 77 and 75A of the Finance Act, respectively.
4. The appellants have paid all the amounts including penalties. Thereafter, the Order-in-Original passed by the Assistant Commissioner of Central Excise & Customs, Nasik, who in turn revised the penalty amount of Rs. 6,000/-lump sum to the penalty @ Rs. 100/- per day under the provisions of Section 76 of the Finance Act, 1994 and having calculated at the rate for the period in dispute, which is found to be excessive in terms of Service Tax, restricted the same equal to Service Tax of Rs. 59,573/-. Thus, a Show Cause Notice dt. 29-7-05/1-8-05 was issued to the appellants under the provisions of Sub-section (2) of Section 84 of the Finance Act, 1994, the penalty amount of Rs. 6,000/- shot up to the tune of Rs. 60,000/- approx. The appellants having been aggrieved by the impugned order came to the Tribunal by way of this appeal.
5. The ld. DR vehemently contends that the penalty of Rs. 100/- per day is mandatory in nature under Section 76 and supports the impugned order passed by the learned Commissioner.
6. The ld. Counsel for the appellants submits that the actual amount of Service Tax collected from their customers has been paid along with interest and penalties basing on the statement of the partner. Even the perusal of the statement shows that the appellants had no mala fide intention in evading the Service Tax, but for want of awareness the payment was upheld. Further, it is contended that presently the unit has been closed and no business activity is taking place. According to the counsel for the appellants it would be a Herculean task for payment of revised penalty since the same is under financial constraints. Therefore, he prays humbly to reduce the amount of penalty considerably.
7. Having considered the facts of the case and circumstances, it is quite felt expedient to reduce the penalty amount proportionately. Accordingly, the penalty amount is reduced to Rs. 15,000/- from Rs. 59,573/-. Amount of penalty Rs. 6,000/- has already been paid by the appellants be deducted out of an amount of Rs. 15,000/- now confirmed and balance of Rs. 9,000/- be deposited. Appeal is disposed off accordingly. Stay application is allowed.
(Prouounced in court)