Krishna Kumar, Member (J) - (1.)HEARD both sides.
(2.)THE learned advocate appearing for the appellant submits that the appeal has been filed challenging the imposition of penalty of Rs. 73,293 under Section 76 of the Finance Act, 1994. It is seen that the Commissioner (Appeals) has restricted the penalty amount under Section 76 to Rs. 73,293 being the service tax amount payable by the appellants. The provisions of Section 76 clearly provide that the amount of penalty during which the failure has continued shall not exceed the amount of service tax that the appellants have failed to pay. In this case, the Commissioner (Appeals) has therefore, restricted the amount to the service tax, i.e., payable from Rs. 79,621 to Rs. 73,293. The provisions of this section nowhere talk of any mens rea on the part of the appellants in failure to make the payment. Therefore, the contention of the learned Counsel for the appellants that there was no mens rea on the part of the appellants in not paying the service tax on due date is extraneous to the provisions of Section 76 and similarly the reliance placed by him on the case of Jain Pradeep and Co. 2005 -TIOL -1303 -Cestat -KOL is misplaced. I do not find any merit in the appeal filed by the appellants. The appeal is therefore, dismissed.