TMI Blog2010 (12) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... enue is rejected. - ST/126/2008 - A/1938/2010-WZB/AHD - Dated:- 24-12-2010 - Shri B.S.V. Murthy, JJ REPRESENTED BY : Shri R.S. Srova, JDR, for the Appellant. Shri H.P. Singh, C.A., for the Respondent. [Order] . - M/s. Gujarat Maritime Board, Okha Port and Sub Port Rupen, Dist. Jamnagar (hereinafter referred as Assessee) has held the registration certificate as service provider of port services during the period from 11-9-2004 to 13-9-2004 and there was a short payment of service tax to the extent of Rs. 93,621/- because the assessee failed to discharge the service tax at the rate of 10% towards service tax and 2% towards education cess and paid service tax at the rate of 8%. The show cause notice was issued on 23-6-2006 requiring the assessee to pay differential service tax and also proposing to impose penalty under various sections of Finance Act, 1994. In the first round of litigation, the matter reached the Tribunal and this Tribunal vide order No. A/2372/WZB/AHD/2007 dated 3-9-2007, set-aside the order passed by Commissioner (Appeals) and remanded the matter to original adjudicating authority for de novo consideration with directions to the assessee to produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to even consider the provisions of sections 76 and 80 of the Act before passing the impugned order. The statement by the Tribunal that benefit of Section 80 of the Act has been appropriately extended to the assessee indicates total non-application of mind on the part of the Tribunal. How and in what manner reasonable cause is shown to exist by the assessee in the facts of the case has not even been recorded. It is unfortunate that despite catena of judgments of the Apex Court and this High Court the Tribunal continues to pass orders which can at best be termed to be non-speaking and cursory. It is necessary that the Tribunal realizes that passing of such orders results in multiplicity of proceedings without benefiting any one, resulting in repeated litigation. (14) In so far as judgments of various High Courts cited on behalf of the assessee are concerned, suffice it to state that this Court is in respectful disagreement with the said judgments in light of the fact that in none of the judgments have the provisions of either Section 76 or Section 80 of the Act been analyzed and dealt with. (15) In the circumstances, the impugned order of Tribunal dated 26-12-2008 is hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce there was delay in collecting increased rate and payment. He also submitted that on 10-9-2004 the Finance Act, 2004 came into effect and 11-9-2004 and 12-9-2004 were holidays. Intimation of change of rate from 8% to 10.2% reached to port office only on 13-9-2004 due to erratic electricity supply and telephone service. There were only 14 instances of short payments and all occurred over this period only. It was also submitted that Gujarat Maritime Board has 30 service tax registrations and default occurred only in one location. 4. Section 76 of Finance Act, 1994 reads as under :- Penalty for failure to pay service tax. 76. Any person, liable to pay service tax in accordance with the provisions of Section 68 or the rules made under this Chapter, who fails to pay such tax, shall pay, in addition to such tax and the interest on that tax in accordance with the provisions of Section 75, a penalty which shall not be less than two hundred rupees for every day during which such failure continues or at the rate of two percent of such tax, per month, whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-Section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-Section (1) in respect of the amount so paid. From the above, it can be seen that leave alone the imposition of penalty, as per the provisions of Section, even show cause notice could not have been served. However, this is only of an academic interest. 7. In this case, the assessee was not in appeal against the penalty of Rs. 10,000/- and it was only Revenue which was in appeal requiring enhancement of penalty. Therefore, even though the provisions of Section 76 read with Section 80, would mean that the penalty cannot be reduced but can only be waived totally. In a case like this, where the appeal is only for enhancement and not against the reduced amount by the party who has been visited with penalty, the issue before the Tribunal for consideration would be whether this is a fit case for enhancement or not. Since I agree with the view taken by the Commissioner (Appeals) that assessee has shown re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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