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TMI Blog2006 (11) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... came into force from 1997 and well known to tour operators. The decisions on which the Ld. Commissioner (Appeals) relied upon relates to the matter of Central Excise and mere payment of service tax before issue of show cause notice does not alter commission of breach of law on the date of commissioning of the offence. Casual plea of the assessee that they spent substantial money on advertisement and other expenses to attract travel loving people does not appear to be reasonable cause to exonerate from penalty. Of course, just because penalty is prescribed that should not mechanically be levied following Apex Court s decision in the case of Hindustan Steel Ltd. v. State of Orissa [ 1969 (8) TMI 31 - SUPREME COURT] . Section 80 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of Adjudication dated 29-4-2004 in relation to belated payment of service tax for Tour Operator Service which is exigible to tax w.e.f. 1-9-97. Admittedly the liability related to the period October, 2001 to September, 2002 discharged on 18-11-2002 and application for registration was even delayed and filed on 14-3-02 which was beyond statutory period of 30 days as prescribed by Section 69 of the Act read with Rule 4 of Service Tax Rules, 1994. The Ld. Adjudicating authority finding that the service tax was not deposited with the Government in respect of the above period duly, worked out period of delay in order of adjudication which was the basis for imposition of penalty @ Rs. 200/- per day, being a continuing default. In respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice was issued on 30-5-2006 fixing hearing on 3-7-2006. The respondent neither appeared nor sought adjournment. When third notice was issued on 20-11-2006 by speed post fixing hearing on 23-11-2006 that was returned by Postal Authority with remark that no such addressee here . Of course on the scheduled date of hearing on 23-11-2006 following principles of natural justice, the matter was adjourned to 27-11-2006. In spite of such opportunity, there was no appearance by Respondent. It was therefore considered proper to dispose the appeal on its own merit. 5. Heard the Ld. DR. He submitted that the Ld. Commissioner (Appeal) without appreciating mandatory provisions of Section 76, set aside penalty imposed under that section merely relyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of breach of law and also to discourage non-compliance to the law of any wilful breach. Penalty prescribed by Section 76 is levy on service tax on the consideration received in relation to Tour Operator Service which came into force from 1997 and well known to tour operators. The decisions on which the Ld. Commissioner (Appeals) relied upon relates to the matter of Central Excise and mere payment of service tax before issue of show cause notice does not alter commission of breach of law on the date of commissioning of the offence. Casual plea of the assessee that they spent substantial money on advertisement and other expenses to attract travel loving people does not appear to be reasonable cause to exonerate from penalty. Of course, j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 2004 (163) E.L.T. A53. Similar view was also taken by the South Zonal Bench of the Tribunal at Chennai in the case of EID Parry (I) Ltd. v. Commr. of Central Excise, Mumbai reported in 2003 (156) E.L.T. 753 ( Tri-Chennai); following its earlier decision in Dynamatic Technologies Ltd. v. CCE, Chennai reported in 2003 (54) RLT 675 (CEGAT-Chennai). But contrary decision holding penalty whereever prescribed shall be leviable whenever there is a failure to pay duty by the date was held by Hon ble High Court of Allahabad in the case of PEE AAR Steels Pvt. Ltd. v. Commr. of Central Excise reported in 2004 (170) E.L.T. 406 (Allahabad). Relying on such judgment, Tribunal has already held in the case of Mittal Texo Fab Ltd. v. Commr. of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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