ORDER
J.N. Srinivasa Murthy, Member (J)
1. The applicants have requested for the stay of the impugned order and dispensing with the pre-deposit of the penalty amounting to Rs. 4,500/- imposed thereunder, in view of the appeal grounds urged that the delay of 43 days in filing the return for the period September 1996 quarter ending and December, 1996 there is a delay of 1 day on the ground that during September 1996, the authorised signatory Rajesh Zamvar was on leave and gone abroad and immediately of his return, it was filed on 26-11-96, and for December 1996 there is an urgent meeting on 15th & 16th January, 1997 and so it was filed thereafter. The turnover of the service charges for the period was Rs. 78.70
p. and the service tax 5% paid was a mere Rs. 3.93. For the quarter ending December 1996 the service tax paid was Rs. 20/- for the taxable service of Rs. 400/- at 5%. The penalty imposed is harsh. Total taxable service, on account of brokerage from December 1996, was only 1711.23, service tax paid Rs. 85.62 for the period March, and September 1997 it is nil. The penal provision at the relevant time was not less than Rs. 100% and extended to Rs. 200/- for every day of delay in filing return. The authorised representative of the applicant submit that date of the filing return was 15th of the subsequent month, of the quarter ending. He has cited decision of the Tribunal in Sanakumar Karriawad v. CCE, Allahabad in E/ST. 199/93 and E/No. 1616/93, dt. 14-2-97 where penalty imposed for 90 days at the rate of 100/- per day was set aside on the ground that the appellant purchaser was new assessee, and the nil tax return was filed late. The ld, JDR submits that statutory duty was not properly discharged by applicants and reasons assigned are not sufficient, and the Assistant Commissioner has taken a linient view in imposing the penalty.
2. Perused the decision cited by the applicants. As contended by the JDR nil return was filed in that case and so the penalty was waived. In the instant case, admittedly service tax had to be paid, and the applicants are aware of it, and the delay of 43 days in filing the return on the ground that the authorised signatory had gone abroad on leave is not sufficient to make out a prima facie case. So the penalty imposed appears to be proper. But, the looking to the volume of the business of the applicants, as narrated, and also as submitted by the authorised signatory, Applicant is directed to deposit of Rs. 2,500/- within one month from today, subject to which the recovery of the balance is stayed compliance report on 21-4-99.
(Pronounced in Court)