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CUSTOM EXCISE & SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI
C.N.B. Nair, President, JUSTICE K. SREEDHARAN
Commissioner of Central Excise -Appellant
Versus
Milan Tent Palace -Respondent
FINAL ORDER NO. 58/2001-D in APPEAL NO. ST/4/2000-D
Decided On : 02-02-2001
Sheo Narayan Singh
C.N.B. Nair, Technical Member. - The appeal is directed against Order- in-Appeal No. 851 (KDT) CE/JPR-I/2000, dated 5-9-2000 passed by the Commissioner (Appeals), Central Excise, Jaipur. Vide the impugned order the Commissioner set aside the order of the lower authority giving relief to the assessee in respect of penalty imposed on him for delay in filing the return under service tax for the quarter ending December, 1997. The present appeal submits that under section 77 of the Finance Act, 1994, a minimum penalty of Rs. 100 per day was liable to be imposed for delay in filing the return. Appellant relies on a decision of the Tribunal in Harilal & Co. v. CCE 2000 (115) ELT 375 (Trib. - Mum.) in its support.
2. None has appeared to represent the respondent in spite of notice. Therefore, we are disposing of this appeal of the Commissioner after hearing the learned senior departmental representative and after perusing the record. We find that this Tribunal’s decision in Harilal & Co.’s case (supra) accepts the view that penalty is subject to discretion and the amount of penalty of Rs. 100 per day of delay is not the minimum penalty. No ground has been made that penalty is not discretionary and the competent authority is bound to impose penalty at a minimum rate. When the matter is discretionary, the competent authority is at liberty to waive it also in deserving cases. The impugned order has been passed waiving the penalty after taking into account the relevant facts and circumstances. We do not want to interfere with the said exercise of discretion.
3. The appeal fails and is rejected.
