TMI Blog2007 (7) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... al by the appellant urging various legal grounds in support of the substantial question of law framed in this Appeal and prayed to answer the same in favour of the Revenue, which reads thus, - Whether Section 76 of the Finance Act, 1994 relating to Service Tax to be read as the penalty which shall not be less than Rs. 100/- per day but for every day during which such failure continues or the penalty which shall not be less than Rs. 100/- in absolute terms ? The grounds urged in support of the said question of law by the appellant is that the Appellate Authority while exercising its appellate jurisdiction overlooked the statutory provision of Section 76 of the Finance Act and not considered the finding and reason recorded by the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside the order impugned and restore the order of the original authority. 2. Shri Kiran S. Javali, learned counsel on behalf of the respondent justifying the impugned order has contended that neither the original authority nor the first Appellate Authority have properly appreciated the tenable explanation offered by the respondent for non-remittal of the Service Tax charges by it and not submitting the returns is on account of workmen being unrest during the relevant period of time. Therefore, the respondent was (not) liable to pay the penalty amount as imposed by the Assessing Authority in view of Section 80 of the Income-tax Act (sic - Finance Act, 1994) and further it is contended that the second Appellate Tribunal after considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax Act (sic - Finance Act, 1994) mandates the respondent herein to pay Service Tax. It is an undisputed fact that Service Tax could not be paid within the stipulated time so also returns were not submitted., by the respondent. The reason assigned for not having paid the Service Tax was that there was unrest in the factory, which started from October 1998 to May 1999. In this regard, the notification issued by the State Government under Section 10(3) of the Industrial Disputes Act is produced. The same has been disbelieved by the Assessing Authority, as it is not a reasonable explanation for the reasons recorded by him namely that the Service Tax payable for the period from April 1998 to March 1999 during the period prior to October 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eless, the order of penalty imposed is accepted by him. The same is in conformity with the reasons as signed by the Assessing Authority. The second Appellate Tribunal was not right in setting aside the same by following the decision of the Supreme Court and its own decision of the Delhi Bench and the same is in contravention of the material on record on the basis of which the finding is recorded by the original authority and further there is no tenable explanation by the assessee for not to impose penalty upon it for the period April 1998 to September 1998. Therefore, the original authority has rightly imposed penalty in exercise of his discretionary power at Rs. 100/- per day instead of imposing Rs. 200/-. The same neither can be termed as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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