GUJARAT TEST HOUSE Vs. COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.) THE appellants are engaged in providing services of technical tests and inspection and there is no dispute about the service tax liability which has been paid with interest. Penalty has been imposed under Section 76 and Section 77 of Finance Act, 1994.

(2.) THE learned advocate on behalf of the appellants submits that during the period when the delayed payment was made, Section 76 provided for penalty of Rs. 100 (Rupees one hundred only) per day only and Rs. 200 (Rupees two hundred only) per day was introduced subsequently. However, in this case penalty has been imposed at Rs. 200 per day. Further, under Section 77 there was no provision for imposition of penalty for filing the return late which was also introduced later and therefore their case is covered by the earlier Section 77 before the amendment. However he also submits that the late payment occurred because appellant wanted to pay service tax out of the Cenvat credit but he was advised that it was not possible by the Revenue. Hence he seeks lenient view as per Section 80 of the Finance Act, 1994.

(3.) I have considered the submissions made by both the sides. I find that the claim for lenient view under Section 80 on proper grounds was not made before the lower authorities and further the amendments in Section 76 and Section 77 were also not brought up before the lower authorities. In view of the amendments in both the sections which were brought subsequently, I find considerable force in the arguments advanced by the learned advocate. Therefore, after allowing the stay petition against the recovery of penalty unconditionally, the appeal itself is taken up for disposal and the matter is remanded to the Original Adjudicating Authority to decide the matter afresh after considering the amendments in Section 76 and Section 77 and the applicability thereof to the appellants. Further, the claim for lenient view under Section 80 may also be considered. Needless to say the matter will be decided by the Original Adjudicating Authority after giving an opportunity to the appellants to present their case.