ORDER
T.V. Sairam, Member (T)
Page 550
1. This is an appeal filed by M/s. S.R. Enterprises against order of the Commissioner (Appeals), confirming the penalty imposed by the original authority (Rs. 1,47,212/- (Rupees One Lakhs Forty seven Thousand Two Hundred Twelve only) under Section 76 of Finance Act, 1994 and Rs. 3600/- ( Rupees Three Thousand Six Hundred only under Section 77 ibid). The ld. Consultant informs that there has been confusion with regard to the change in his jurisdiction during the period and also with regard to the transfer of Commissionerate, designated Bank for making tax payment, etc. According to him, due to the confusion, they were not clear as to how and when the tax has to be paid.
2. However, they did pay the Service Tax along with the interest for the delayed period and interest along with heavy penalty imposed by the Department on them. The ld. Consultant refers to the Apex Court in the case of Hindustan Steel 1978 (2) ELT (J-159) (SC) wherein it was held that penalty will not ordinarily be imposed unless the party either acted deliberately in defiance of law or was guilty of conduct or dishonest or acted in conscious disregard of its obligation. It was also pleaded by him that the law laid down in the cases of Videocon International Ltd. 1994 (74) ELT 873 (Trib.), DCW Ltd. 1996 (88) ELT 31 (Mad) and Johnson and Johnson Ltd. 1995 (78) ELT 193 (Trib.) also supported the view held for condonation of delays and waiver of penal provisions. The ld. Consultant also refers to the case of Sundeep Gogal & Co. v. Commissioner of Central Excise, Kolkata-I Page 0551 condoning the penalty on the ground that Service Tax being a new tax as the assessee paid his dues and interest 2001 (133) ELT 785 (Trib -Kolkata).
3. The ld. SDR informs that for four long years the assessee did not bother to pay the Service Tax.
4. The ld. Consultant informs that even today there exists a confusion in the minds of assessee as to which the Commissionerate deals with the Service Tax administration. To prove his point, he showed a copy of letter dt.07.07.04 addressed to the Superintendent, Service Tax, Mumbai-I on surrendering of Service Tax Registration No. CE/ Mumbai-I/408 for transfer of jurisdiction. In spite of this, he had received a letter dated 07.04.2005 from the same Commissionerate, viz., the Deputy Commissioner of Service Tax, Mumbai Division I & II, informing the Allotment of Service Tax Code Number, in place of his existing Classification code. He also showed the evidence indicating that there did exist some confusions in transfer of Division G-I of Mumbai-IV Commissionerate to Mumbai-I Commissionerate through a copy of letter issued by Superintendent, Service Tax Cell, vide F. No. V(30)STC/REORG/ 15-5/Gr.XIX/03 dt. 10.02.2003. According to him, as they have already paid Service Tax and interest thereon; penalty has to be set aside.
5. I have examined the case records and heard both sides. I find that certain confusion did prevail by way of changing jurisdiction etc. in the Service Tax administration during the relevant period which had given rise to inconvenience to tax-payers. I, therefore, take a lenient and sympathetic view of the whole matter. I, modify the order of the lower authorities only with reference to penalties imposed under Section 76 and 77 of the Finance Act. A penalty of Rs. 5000/- (Rupees Five Thousand only) both under Section 76 and 77 would meet the ends of justice.
6. The appeal is allowed, accordingly.
(Pronounced in court)