1. These three appeals filed by the Revenue against the same Order No.108-110/Kol-I/04 dated 23.8.04 passed by the Commissioner of Central Excise (Appeals). In all the cases, penalties were imposed in terms of Section 76 of the Finance Act, 1994 (as amended) for delay in payment of Service Tax and also in terms of Section 77 of the Finance Act, 1994 (as amended) for delay in submission of ST Returns. As the issue involved is common, all the three appeals are being taken together for disposal by this common Order. The Commissioner (Appeals) has set aside the Order passed by the lower authority in all the three cases. He has set aside the imposition of penalties under Section 76 for delay in payment of Service Tax, but upheld Page 483 the Order for imposition of penalty under Section 77 for delay in submission of ST-3 Returns in case of respondents, M/s. Space India and M/s. A.C. Sharma & Associates, whereas in case of the respondent company. M/s. Dey's Colour Film Laboratory, he had set aside the Order passed by the lower authority and these appeals have been filed against the Order of the Commissioner (Appeals) by the Revenue. The Revenue has filed the three appeals basing on the point that Section 76 of the Finance Act, 1994 provides for penal provisions for delayed payment and Section 77 of the Act ibid, provides for delay in submission of the ST-3 Returns within the prescribed period. The Revenue has taken the plea that the decisions under Section 11AC of the Central Excise Act, 1944 as referred to by the Commissioner (Appeals) are not applicable in the Central Excise cases which do not relate to Service Tax.
2. Heard Shri A. Raha, learned S.D.R. for the Revenue, who has reiterated the grounds taken in the appeals filed by the Revenue.
3. None is present for any of the respondents, For better appreciation, I would like to reproduce Sections 76 and 77 of the Finance Act, 1994 at the relevant time, which are reproduced below: SECTION 76. Penalty for failure to collect or pay service tax.-- Any person, liable to pay service tax in accordance with the provisions of Section 68 or the rules made thereunder, who fails to pay such tax shall pay in addition to paying such tax, and interest on that tax in accordance with the provisions of Section 75, a penalty which shall not be less than one hundred rupees but which may extend to two hundred rupees for every day during which such failure continues, so, however, that the penalty under this clause shall not exceed the amount of service tax that he failed to pay.
SECTION 77. Penalty for failure to furnish prescribed return. - If a person fails to furnish in due time the return which he is required to furnish under Section 70 or the rules made thereunder, he shall [be liable to a penalty which may extend to an amount not exceeding [one thousand rupees.] I find in these appeals that the case-law quoted by the Commissioner of Central Excise (Appeal-I), Kolkata, pertains to Central Excise Act. The Commissioner (Appeals) should decide the matters in accordance with the Sections 76 and 77 of the Finance Act, 1994, available at the relevant time. In view of this, I remand all the appeals/to the Commissioner (Appeals) for deciding the matters afresh, after observing the principles of natural justice. The appeals are allowed by way of remand to the Commissioner (Appeals).