COMMISSIONER OF CENTRAL EXCISE, RAIPUR Vs. RAJENDRA GUPTA

JUDGEMENT

(1.) SHRI S.K. Bhaskar, SDR appeared for the appellant. None appeared for the respondent. The appeal is filed against the Order -in -Appeal No. 02(ST)/RPR -1/2009, dated 30 -1 -2009 whereby Commissioner (Appeals) has (sic) imposed penalty Under Sections 76 and 77 of the Finance Act, 1994.

(2.) THE Contention of the appellant is that the Commissioner (Appeals) has set aside the penalty on the ground that there is no failure on the part of the respondent. The contention is that in the instant case the party has not filed ST -3 return and they have paid Service Tax amounting to Rs. 1,48,022 after constant persuasion by the Range Office on 7 -10 -2006.

(3.) I find that this case was remanded by this Tribunal to Commissioner (Appeals) to hear the appeal afresh as per provisions of Section 73 of the Finance Act, 1994. The allegation against the respondent was late filing of ST -3 return, which is liable for penalty Under Section 77. Commissioner (Appeals) has upheld the penalty of Rs. 1,000 Under Section 77. The respondent did not contest the same. The penalty imposed Under Section 76 was set aside by the Commissioner (Appeals) on the ground that there is no allegation regarding non -payment/short payment of Service Tax. Therefore, the imposition of penalty Under Section 76 of the Finance Act, 1994 was not justified as there is no failure on the part of the appellant to pay service tax. Section 80 provides that no penalty shall be imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure. Ld. Commissioner (Appeals) has held that there is no failure on the part of the respondent. The appellant did not produce any evidence contrary to the above. Thus, I do not find any infirmity with the Commissioner (Appeals) impugned order. Therefore, revenue's appeal is dismissed and Cross Objection is also accordingly disposed of.