1. Revenue came in appeal against waiver of penalty imposed under Section 7b and Section 77 of Finance Act, 1994 to the tune of Rs. 35,450/-and Rs. 9,000/- respectively.
2. Ld. DR submitted that like all other assessee, Respondent should be equally dealt under the law and breach of law should be seriously viewed. Mere discharge of the tax amount shall not exonerate the Respondent from penal consequence of law. Ld. DR cited Larger Bench decision in the case of M/s. ETA Engineering Ltd. v. Commissioner of Central Excise, Chennai and submitted that the order of the lower Appellate Authority is liable to be reversed.
3. The Proprietor, Shri P.K. Sen, appeared himself and submitted that levy of Service Tax was totally new and the matter was in debate before various lorum being a new concept in the economy. Also the very nature of levy was subject matter of scrutiny before the Llon'ble High Court of Kolkata, for which the Respondent was prevented to calculate his tax liability and discharge the same duly. As soon as he was guided by sound principle of law and Department's Public relation announcements, came forward to discharge tax liability without delay and filed returns also for different period making known of his facts to the Department.
Although the Respondent had cooperated to Revenue, co-operative attitude and for the findings of the lower Appellate Authority that Department hesitated to issue registration to the Respondent, the matter was under confusion as to determination of liability.
4. Heard both sides. There is no difference of opinion about realization of levy from the Respondent in view of incidence of the levy by specific letters of law. But discharge of tax liability was delayed which appears to be not neither deliberate nor willful or for knowable breach of law. The levy was at the initial stage and subject to judicial review by various High Court. It was certainly a matter of confusion by tax payers on various aspects of law at the infancy stage of enactment. It appears that as soon as Respondent came to understand that it has to discharge his liability, it has done so. But belatedly.
Having been guided by public relation announcements to the effect that if service tax with interest was paid within 30th November, 2004, no penalty was leviable guided the Respondent. Usually promise by the Department, act as promissory estoppel and levy of penally would be deterrent.
5. It should be appreciated that Section 80 of the Finance Act, 1994, exonerates penalty, if there is reasonable cause. The Larger Bench's decision cited by the Revenue, supports such proposition in terms of para 8 of the reported order. The reason cited by the lower Appellate Authority appears to be appealable reason and does not call for imposition of penalty.
6. The lower appellate authority appears to have passed a reasoned and speaking order to waive the penalty. Accordingly, upholding order of adjudication would frustrate justice.