1. After hearing both sides for some time on the stay application, I found that it was possible to hear the appeal itself therefore after waiving the pre-deposit of penalty of Rs. 92,400/- imposed for contravention of Section 76 and Section 77 of the Finance Act, 1994 for late payment of tax as well as for late filing of Service Tax Returns, I proceed to hear the appeal itself with the consent of both sides.
2. The brief facts of the case are that the appellants are engaged in the business of "Air Travel Agent". As per Section 70(1) of Chapter V of the Finance Act 1994, they were required to file their return in Form ST-3 for the quarter ending September, 1997, December, 1997, March, 1998, September, 1998 and March, 1999 within the stipulated period. Since they failed to do so show cause notice was issued proposing penalty under Section 77 of the Finance Act, 1994. The Notice was adjudicated by the Assistant Commissioner who imposed a penalty of Rs. 87,800/- under Section 76, and Rs. 4,600/- under Section 77 of the Finance Act, 1994. The appellants appeal to the Commissioner (Appeals) failed; hence this appeal.
3. I have heard Shri M.H. Patil, ld. Advocate and Shri B.B. Sarkar ld.DR. The Commissioner (Appeals) has accepted that there is no speaking order by the Assistant Commissioner for imposition of penalty under Section 76 therefore he should have set aside the penalty imposed under this section and should not have upheld it on the ground that the negligence on the part of the Assistant Commissioner in giving reasons for imposing penalty under Section 76 of the Act, is to be ignored. I therefore set aside the penalty of Rs. 87,800/- imposed under Section 76 of the Finance Act, 1994. The penalty of Rs. 4,600/- imposed in terms of Section 77 of the Finance Act, 1994 is sustainable. In view of failure to furnish prescribed returns in due time. In the result I set aside the penalty imposed under Section 76, and uphold the penalty imposed under Section 77 of the Finance Act, 1994. The appeal is thus partly allowed.