CESTAT, NEW DELHI BENCH
B.S. Cable Network
Commissioner of Central Excise
FINAL ORDER NOS. 200-201 OF 2012 – SM (BR)
APPEAL NOS. ST/1190-1191 OF 2011-SM
MARCH 19, 2012
1. In both these appeals common dispute is whether penalty under Section 76 of Finance Act, 1994 shall be leviable, when the appellant says that taxes were paid leaving short amount of recovery on adjudication, learned Counsel submits that major amount of tax was paid when the appellant came to know that its liability arose. What that was left for recovery is small amount. So also there is a case for appellant to argue that the appellant shall get benefit under Section 80 of Finance Act, 1994.
2. Learned representative for Revenue supports the appellate order in both the cases.
3. Heard both sides and perused the record.
4. It is fact on record that as against service tax of Rs. 300/- collected for connection the appellant paid Rs. 191/- for connection. It also came to record that during different periods, service tax liability arose. It is also the fact that certain amounts were paid on different dates. Both the authorities below have no finding about suppression of fact. This can be said on the ground that the Adjudicating authority did not impose any penalty under Section78 of the Finance Act, 1994. The appellant was registered with the department on 28.11.2002. To some extent i.e. amount paid, the appellant’s submission may be correct to hold that it was not defaulter to the extent deposited with Revenue. But for the shortfall, the appellant is answerable under the law.
5. Since the appellant prays that it has a case for consideration under Section 80 of the Finance Act, 1994 it is desirable to bring to record about the date on which liability arose, date of return ought to have been filed, date on which admitted tax liability should have been discharged and the date of discharge of duty liability. If these particulars neatly come out to record, that shall enable the authority to properly consider the plea of the appellant as whether it is entitled to the benefit of Section 80 of Finance Act, 1994.
6. With the aforesaid observation, both the appeals are returned to Adjudicating Authority to examine threadbare about the basis stated above to come to a proper conclusion about levy of penalty under Section 76 of Finance Act, 1994. In the result, appeals are disposed by way of remand only in this limited count.
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