9911796707
TMI Blog2007 (9) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... late deposit of Service tax and thus proposing to take penal action against them. The said show cause notice was adjudicated by the Asst. Commissioner confirming the demand of duty of Rs. 11,85,783/- and imposing personal penalty of identical amount under Section 76 of the Finance Act in addition to imposition of penalties under the other Sections. The said order of the Asst. Commissioner was put to challenge by the appellant before Commissioner (Appeals) along with an application for dispensing with the condition of pre-deposit of duty and penalty. It is seen that the said application was decided by Commissioner (Appeals) vide his stay order dt. 24-9-2004 directing the appellant to make a pre-deposit of Rs.4 lakhs and submit proof by 25-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering due date of each payment and calculated upto the date of payment of the Service tax. The total number of days so calculated have been taken into consideration. 3. The said letter dated 25-1-2006 of the Addl. Commissioner was appealed against by appellant before Commissioner (Appeals). 4. Commissioner(Appeals) while dealing with the said appeal of the appellant accepted their stand that they were within their right to file a rectification of mistake application in terms of provisions of Section 74. By further referring to Section 74(2) which restricts the power of the Central Excise officers to rectify any mistake apparent from the reference to such matters other than the matters which have been considered and decided in app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance with the wordings of Section 76 which clearly states that the penalty shall not be less than one hundred rupees of every day during which such failure continues. Rule 6 of the Service Tax Rules, 1994 specifies that service tax is payable every quarter by the 25th of the month immediately following the said quarter hence each non-payment becomes a failure under Section 76. The phrase for every day during such failure has to be interpreted accordingly. It is, therefore, clear that while the methodology adopted by the Assistant Commissioner in counting number of days was incorrect, that suggested by the appellants is equally not applicable. The mistake of not quantifying penalty for each failure on the basis of the number of days of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords, which may be a typographical mistake or a calculative mistake or any arithmetic mistake. The same by no stretch of imagination, can be extended to an interpretation of the legal provisions of law. Inasmuch as in the present case, the mistake pointed out by the appellant was a mistake relating to the method to be adopted for the purpose of calculating the number of days delay it cannot be said that the mistake was a mistake apparent from records. The same definitely involved interpretation of the provisions of law. This becomes clear from the fact that Commissioner (Appeals) has herself also not accepted the appellant s stand and has adopted a different methodology for calculating the number of days delay. This shows that the issue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals) either for modification of the said order or after depositing the directed amount, for disposal of appeal on merits. Neither course having been adopted by the appellant, it is to be held that the orders of Addl. Commissioner stood confirmed by Commissioner (Appeals) and could not have been subsequently modified by him. 8. In view of my above discussion, I hold that the Addl. Commissioner, order as contained in his letter dt. 25-1-2006 rejecting the prayer for modification was correct and Commissioner (Appeals) s impugned order lowering the penalty amount is not in accordance with law. However, there is no appeal by the Revenue against such reduction of penalty and as such the same cannot be enhanced to the original quantum of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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