CESTAT, NEW DELHI BENCH
Commissioner of Central Excise, Jaipur
FINAL ORDER NO. 396 of 2012 SM (BR) & S-331 of 2012 SM (BR)
APPLICATION NO. ST/S/167 of 2012-SM
APPEAL NO. ST/71 of 2012-SM
APRIL 12, 2012
1. Ld. Counsel submits that this appeal is confined to the penalty aspect since tax demand has already been discharged with interest. It is grievance of the appellant that section 80 is invokable in the present case because discharge of tax liability was delayed due to financial condition and illness of a family member for which the appellant was prevented to comply to law.
2. Perusal of the show-cause notice indicates that the appellant had realised service tax from his client but did not deposit. The mitigating factors of financial condition and illness could have been received consideration, had the appellant not realised service from its clients. Since service tax was realised and that was with the appellant, keeping such public money the appellant does not require any consideration for total waiver of penalty. Only looking to the cooperative attitude of the appellant, it may not be proper to penalise under section 76 and 78 of the Finance Act, 1994. Simultaneously, to remove hardship, it would be proper to direct the appellant to deposit 25% of the demand towards penalty under section 78 of the Finance Act 1994 within 30 days of receipt of this order. If there is no deposit, this order shall stand vacated and Revenue shall be free to realise its entire dues in accordance with law.
3. So far as liability under section 77 is concerned, that stands confirmed along with tax demand made by adjudication order. For the decision aforesaid, stay application is disposed and appeal is allowed partly to the extent indicated above.