TaxTMI 
TaxTMI 
2007 (9) TMI 501
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....t 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 25-10-2004. Inasmuch as the appellant did not comply with the above stay order ....
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....f 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 appeal or revision, she accepted the appellant's stand that inasmuch as a....
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....e 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 delay and the amount of service tax payable is apparent on record ....
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....istake 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 is not simple issue of calculation but involves legal interpreta....