ORDER
J.H. Joglekar, Member (T)
1. When this application for stay was heard, it appeared that the appeal itself could be disposed of at this stage. With the consent of both sides, this was done.
2. I have heard Shri R.K. Ghadge, Consultant for the appellant and Shri V.K. Suman for the Revenue.
3. The applicant was a share broker. Service tax was imposed on such brokers with effect from 1-7-94 vide the provisions of Finance Act, 1994. On 15-7-94, the appellant sought clarification from the Collector as to whether he was liable for collection and payment of service tax. The cause for such query was that he was working as a representative broker for some other person who had informed the appellant that he would be liable for payment of tax. The Collector’s reply not having been received, the appellant sought registration on 26-7-94 but did not file returns pending receipt of the Collector’s reply. He wrote two reminders, finally the clarification was received in April 1995 with the ruling that he was liable to pay the service tax. In the meanwhile, two show cause notices respectively dated 13-12-94 and 18-3-95 had been issued for non-furnishing of returns for quarters ending September 1994 and December, 1994. The Asst. Commissioner imposed penalty of Rs. 7,100/- on the appellant. The Commissioner (Appeals) having upheld the penalty, the present appeal has been filed.
4. Reliance is placed on the following judgments :
(i) Ashok Rastogi v. CCE, Kanpur .
(ii) Sajjan Kumar Kariwala v. CCE, Allahabad 1997 (20) RLT 885.
(iii) R.K. Somani .
5. I find that the law laid down in the first two judgments is not relevant inasmuch as the appellant in the present case had admittedly transacted business. In the last named judgment, interpretation of Section 77 may require further analysis.
6. What is relevant in this case is that the appellant was under a genuine belief that he was not required to perform under the service tax rules but as a matter of abundant precaution, he had sought the advice of the Jurisdictional Officer. The advice was received only after the show cause notices were issued. In such a situation where the department had knowledge that the appellant was not discharging his obligation, pending receipt of advice sought, it was not appropriate for the appellant to have been subjected to penal proceedings. On this account alone, the appeal succeeds and is allowed. Consequential relief is ordered.
7. he stay application also stands disposed of.