ORDER
R.K. Abichandani, J. (President)
1. This appeal is directed against the order dated 26-2-2004 made by the Commissioner (Appeals) thereby dismissing the appeal by upholding the order of the adjudicating authority imposing penalty on the appellants under Section 77 of the Finance Act, 1994.
2. Earlier the Tribunal, by its order dated 28-3-2001, while setting aside the Appellate Commissioner’s order dated 3-11-2000 had remanded the matter for fresh decision in accordance with the law. Originally the appeal was filed against the order-in-original dated 22-2-1999 passed by the Assistant Commissioner, imposing penalty of Rs. 27,500/- on the appellant under Section 77 of the Act on late submission of the ST 3 return for the quarters ending September, 1997, December, 1997, March, 1998 and June, 1998. That penalty was set aside by the Commissioner (Appeals) in the earlier order in appeal since no notice was issued in terms of Section 70(2) asking them to file their returns. That order was challenged by the revenue and the Tribunal remanded the matter for fresh decision pursuant to which the impugned order has been made.
3. The Commissioner considering the contentions of the appellants narrated in paragraph 3 of the order that issue of notice under Section 70(2) was not a pre-requisite for imposition of penalty under Section 77 and the liability to pay penalty arose on failure to furnish returns in due time, has found that there was abnormal and repeated delay in filing the return and tax on tour operators became operational from 1-9-1997 and the appellants were registered on 13-11-1997. It was found that appellants had misled and shown utter disregard for law and no cogent explanation was given for abnormal delay. Therefore, there was no case made out for invoking the provisions of Section 80 of the said Act.
4. The learned Authorised representative for the appellant contended that the appellant was having only one car and that he was registered under Clause (32) of Section 65 as a “rent-a-cab” scheme operator. Referring to the scheme, he submitted that a licence was required by such operators under the scheme of 1989 and minimum fleet of 50 cabs was required with such licences for five Metropolitan cities. It was submitted that the appellant was a small time operator having only one cab and from the fact that he had paid the service tax of Rs. 5,000/- at one time, it could be easily inferred that the appellant was not operating on a large scale. It was submitted that revenue should have inquired as to the nature of services provided by the appellant. Reliance was placed on the decision of the Tribunal in Ramesh Chandra Khanna v. CCE, Kanpur , in which it was held that Sub-section (2) of Section 70 provided for an issue of a notice to the service tax assessee, who had failed to file the return. In that case, instead of doing so, the officer had chosen to issue a show cause notice and imposed a penalty upon him. It was a situation where the law permitted regularization of past error which law was not followed by the departmental officer. The learned Authorised representative for the appellant also heavily relied upon the communication dated 8-3-1999 sent by the appellant to the Joint Commissioner stating that this service did not fall within the ambit of rent-a-cab scheme operator. It was submitted that though this communication was sent after the order was made by the original authority on 22-2-1999, it ought to have been taken into account.
5. The learned authorised representative for the department, supported the reasoning and findings of the Commissioner (Appeals) and submitted that at no point of time during the earlier proceedings in which the matter came to be remanded by the appellate order or till the present impugned order was made on 26-2-2004, this contention on the basis of the letter dated 8-3-1999 was taken up. It was submitted that it was for the first time that this contention on that, the appellant was not a rent-a-cab scheme operator has been raised.
6. It appears from the record that there was a mis-conception on the part of the appellant in trying to raise the contention on the basis of appellant not being a rent-a-cab operator. It appears from the order-in-original which is in Hindi, more particularly Para 1 thereof, containing narration of the facts, which has not been disputed, that the appellant had got himself registered as tour operator which item appears at Clause (44) of Section 65 of the Act. It is recorded in the order-in-original that show cause notices were issued to the appellant because the appellant had not filed the quarterly returns as required by Section 70(1) of the Act in respect of quarter ending September, 1997, December, 1997, March, 1998 and June, 1998, and this is why, he was called upon to show cause vide notices dated 12-2-1998, 29-4-1998 and 28-7-1998 to file the required returns immediately. They were also issued a show cause as to why penalty should not be imposed under Section 77 on the appellant.
7. There was never any contention raised by the appellant, at any stage, that he was not registered as “tour operator” or that no such notices were given. The appellant never raised the contention that he was registered as a rent-a-cab scheme operator under Clause (32) of Section 65 by mistake. The contentions raised on behalf of the appellant are wholly misconceived and cannot be countenanced. The default of the appellant in not furnishing the returns as were required to be furnished under Section 70(1) stands established. He was also called upon to file return as Section 70(2) and the liability to pay the penalty for violation to furnish the prescribed return quarterly arose on the part of the appellant under Section 77. The penalty imposed at the rate of Rs. 100/- per day cannot be considered to be harsh and the Commissioner (Appeals) has rightly held that no reasonable cause has been shown for reducing that penalty. There is absolutely no warrant for interference with the impugned order. The appeal is, therefore, dismissed.
(Dictated and pronounced in the open Court)