TMI Blog2008 (7) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel, for the Appellant. Shri Navneet Kaushik, Advocate, for the Respondent. [Order per : Prafulla C. Pant, J. (Oral)]. - This appeal, preferred under Section 35G of the Central Excise Act, 1944, is directed against the order dated 3-12-2004, passed by the Customs, Excise and Service tax Appellate Tribunal, New Delhi (hereinafter referred as CESTAT), whereby Appeal No. ST/69/04 -NB(S), filed by the assessee was allowed. 2. Following substantial question of law has been raised by the Revenue in this appeal: Whether, the penalty under Section 77 of the Finance Act, 1994 justified in respect of default in submitting ST-3 return for period prior to 31-3-2000, even though the same was filed on 23-1-2002 i.e. long after the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994. Aggrieved by said order dated 27-1-2004, passed by Commissioner, Central Excise, Appeal No. ST/69/04-NB(S) was preferred by the respondent-assessee before the CESTAT, who vide its impugned order dated 3-12-2004 allowed the appeal and set aside the order passed by the Commissioner. Hence, this appeal by the revenue. 5. Before further discussion, we think it just and proper to mention here relevant provision of law, applicable to this case. Section 70 of the Finance Act, 1994, reads as under: "70. Person responsible for collecting service tax to furnish prescribed return. - (1) Every person responsible for collecting the service tax shall furnish or cause to be furnished to the Central Excise Officer in the presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under: "77. Penalty for failure to furnish prescribed return. - If a person fails to furnish in due time the return which he is required to furnish under sub-section (1) of Section 70 or by notice given under sub-section (2) of that section, he shall pay, by way of penalty, a sum which shall not be less than one hundred rupees, but which may extend to two hundred rupees for every day during which the failure continues." 6. Now, we have to examine whether, the CESTAT has committed any error of law by setting aside the penalty imposed by the Commissioner, Central Excise, in the matter? Broadly speaking, it is settled principle of law that the penalty is required to be imposed wherever the assessee avoids or attempts to avoid to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d learned Counsel for the parties, in the above circumstances, we are of the view that non-submission of one particular return ST-3 for only quarter ending December 1997, on the part of the assessee cannot be said to be intentional withholding of the same for the purposes of avoiding the payment of tax, which has been paid by the assessee. It is pertinent to mention here that amount of tax was only Rs. 1,000/-. Therefore, considering the peculiar circumstances of the case, we are of the view that the Deputy Commissioner, Central Excise has committed no error of law in dropping the proceedings and the CESTAT has also committed no error in upholding the same and in setting aside the order passed by the Commissioner, in revision. On the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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