1. The appellants filed this appeal against the order-in-appeal dated 16-12-1997 passed by the Commissioner (Appeals), Central Excise. The brief facts of the case are as under : 2. The appellant was engaged in the profession of stock broker and also registered with the Central Excise Department under Section 69 of Chapter V of the Finance Act, 1994. The appellant deposited the service tax within time. However, the requisite returns were filed beyond the time prescribed under the Act. A penalty of Rs. 9,900.00 was imposed on the assessee under Section 77 of the Act. The appellant filed appeal and the same was dismissed.
3. The learned Counsel appearing on behalf of appellant submits that no show cause notice was issued under the time stipulated under Section 70(2) of the Act. He further submits that a show cause notice was issued under Section 80 while notice was to be issued under Section 70.
He further submits that the required tax was deposited within time and due to the ignorance of his [Employee] the necessary returns could not filed within time. He further submits that the impugned order dismissed the two appeals and the Tribunal in the connected appeals vide Final Order No. A/576/98-NB, dated 1-6-1998 allowed the appeal filed by Shri S.R. Khandelwal in similar situation. He, therefore, prays that the appeal be allowed. Learned JDR appeared on behalf of the Revenue submits that necessary notice was issued to the appeal but he did not avail the opportunity to explain the delay in filing the return. He also reiterated the findings of the lower authorities.
4. By the impugned order the Commissioner (Appeals) disposed of two appeals. One filed by the appellant and one by Shri S.R. Khandelwal.
The Tribunal in the appeal filed by Shri S.R. Khandelwal vide Final Order No. A/576/98-NB, dated 1-6-1998 allowed the appeal. The Tribunal held as under : "I have seen the records of the case and have heard the submissions of both sides. On merits, the appeal requires consideration inasmuch as the entire tax liability had been met in time and no notice was served on the appellants under Section 70(2). In Similar cases, where no tax liability was involved, the Tribunal has set aside the penalty vide the aforesaid decisions. Accordingly, the appeal is allowed with consequential relief to the appellants." 5. In view of the earlier order of the Tribunal which is against the same impugned order, the impugned order is set aside and the appeal is allowed.