SHAYNA CONSTRUCTION Vs. COMMISSIONER OF C. EX., RAJKOT

JUDGEMENT

(1.) THE appellant is a proprietary concern registered under the category of Construction Services and were paying service tax. During the scrutiny of their ST -3 return for the period from April 2006 to September 2006, it was observed that there was a violation of provisions of Section 70 of Finance Act, 1994 since the return was delayed by 187 days and there was also violation of Section 68 of Finance Act, 1994 since there was a delayed payment of service tax ranging from 286 days to 194 days.

(2.) ON the above basis, show cause notice was issued to them on 1 -4 -07, proposing imposition of penalties under Section 76 and Section 77 of Finance Act, 1994. The lower authorities imposed penalty of Rs. 69,596/ - under Section 76 for failure to make full payment of service tax within time limit and penalty of Rs. 1,000/ - was imposed under Section 77 for failure to file return within the prescribed time limit. The said order was confirmed by the Commissioner (Appeals). Hence, the present appeal.

(3.) LEARNED advocate Ms. Avani Mehta, appearing for the appellant submits that at the time of filing return, the mother of the proprietor of appellant firm was ill at native place and therefore he was required to make frequent visits there; that after returning the tax could not be paid on account of financial difficulty. The said plea of the appellant stand rejected by the Commissioner (Appeals) on the ground that the authorities cannot reduce the penalty automatically where the law provides for imposition of penalty in a manner prescribed therein. I fully agree with the appellate authority. The benefit of Section 80 of Finance Act, 1994 cannot be extended to the appellant inasmuch as they were aware of their responsibility to file the return in time and to deposit tax within the period. Having not done so, they have invited the penalties under Section 76 and 77 of the Act. The penalty under Section 76 has already been kept by the lower authorities equal to the demand, though there was a delay of 766 days and by calculating the penalty @ Rs. 200/ -per day as per the provisions of Section 76 of Finance Act, 1994, the same would come to Rs. 1,53,200/ -.