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TMI Blog2009 (4) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... d a penalty of Rs. 36,723.33 on them under Section 78 of the Finance Act, 1994. The amount paid earlier by the assessee was appropriated towards the above demand of service tax. An amount of Rs. 7,845/- separately paid by them was accepted towards interest on tax. The Assistant Commissioner did not impose any penalty on the assessee under Section 76 or under Section 77 of the Act. Against the Assistant Commissioner's order, the assessee preferred an appeal, which was eventually rejected by the Commissioner (Appeals). The order of the Commissioner (Appeals) was set aside by this Tribunal and the case was remanded to him for decision on merits vide final order No. A/41/09/SMB/C-IV dated 15/01/2009 in appeal No. ST/224/2008. Accordingly, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals). For all purposes, it should considered to be pending before the appellate authority ab initio. In this view of the matter, sub-section (4) of Section 84 of the Finance Act, 1994 assumes significance. This provision reads thus: "No order under this provision shall be passed by the Commissioner of Central Excise in respect of any issue if an appeal against such issue is pending before the Commissioner of Central Excise (Appeals)". The Commissioner's order impugned in the present appeal was passed on 15/09/2008 when the assessee's appeal on the issue relating to penalty under Section 78 was pending before the Commissioner (Appeals). Sub-section (4) of Section 84 contains an embargo on the Commissioner of Central Excise (revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was extended to those registered service providers who strictly complied with the requirements of the above scheme before the cut-off date announced by the Government. The appellant, however, has not been able to establish that they had strictly complied with the requirements of the above scheme before the cut-off date. In this scenario, they cannot claim the benefit of the above judgment either. 6. The surviving question to be considered in this case is whether the penalties under Section 76 and 77 could be avoided in terms of Section 80 of the Finance Act, 1994. In fact, in their reply to the show-cause notice issued by the Commissioner, the assessee had claimed the benefit of Section 80. They submitted that, as the levy of service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The plea is not supported by any caselaw either. Further, I am inclined to agree with the Commissioner when he says that neither ignorance of law nor confusion is a reasonable cause for extending the benefit of Section 80 to the assessee. The assessee got registered with the Department as early as in June, 2004. For the first quarter of the year (January to March), they ought to have paid tax on or before 5th April; for the second quarter (April to June) the due date was 5th July; for the next quarter (July to September) the due date was 5th October. The payments were respectively made on 14th October, 30th October, and 3rd November. The service tax returns were filed on 24th December. It cannot be assumed, in these circumstances, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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