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TMI Blog2010 (7) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... lty under Section 76 of the Finance Act, 1994 can be reduced below the limit prescribed by the section?" 2. On 06.05.2010, when the appeal came up for hearing, following order came to be made by the Court: 1. Heard the learned Standing Counsel for appellant revenue. 2. Learned counsel has invited attention to section 76 as it stood at the relevant time as well as section 80 of the Finance Act, 1994 to assail the impugned order of the Tribunal. 3. Notice for final disposal returnable on 24th June, 2010." 3. Pursuant to the said order in response to notice issued by the Court, the respondent-assessee has put in appearance through learned Senior Advocate, who has been heard. ADMIT. The aforesaid question is treated as the substantial ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nia Telecom, 2009 (14) S.T.R. 145 (P&H)= [2009] 20 STT 98 (Punj. & Har.); (vii) Commissioner of Central Excise, Mangalore Vs. Vishwanatha Karkera, 2009(14) S.T.R. 9 (Kar.) [2009] 21 STT 213 (Kar.); (viii) Commissioner of Central Excise Vs. Madhuri Travels, 2009 (15) S.T.R. 241 (Bom.)= [2009] 23 STT 45 (Bom.); (ix) Commissioner of Central Excise, Jalandhar Vs. Batala CITI Cable (P.) Ltd., 2009 (16) S.T.R. 19 (P&H)= [2010] 24 STT 354 (Punj. & Har.); (x) Commissioner of Central Excise, Jalandhar Vs. Steel Craft (India), 2010 (17) S.T.R. 8 (P&H)= [2010] 25 STT 421 (Punj. & Har.). It was further submitted that the Finance Act, 1994, which imposes service tax, is an All India Statute and this High Court should normally not deviate from the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner (Appeals) on 05.05.2008: 8. As regards the equal penalty imposed under Section 76, I find that, the Lower Authority under his Original Order No.1344/Service Tax/2006 dated 31.08.2006 has imposed penalty of Rs.20,000/- for the delay payment of service tax. The penalty has been increased by the Lower Authority in his donovo order from Rs.20,000 to Rs.93,180/- for the same violation without any additional ground. I find that, the appellant has already paid the interest of Rs.21,926/- vide T.R.6 challan dated 20.12.2007 for the delay payment of differential service tax and delay in payment of service tax is on account of change in the rate w.e.f. 10.09.2004. This is not a case where the assessee failed to pay their service tax on monthly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have been enumerated by the Tribunal on which reliance has been placed on behalf of the assessee. In the entire order one does not find as to how and in what manner either Section 76 or Section 80 of the Act vests a discretion in the authority to levy penalty below the minimum prescribed. The last sentence, which appears in the order, indicates that the same is virtually an afterthought. After holding that the Tribunal rejects the appeal filed by the revenue it is observed I also find that benefit of Section 80 of Finance Act, 1994 has been appropriately extended to the respondents. The impugned order is thus not a reasoned order. Sections 76 and 80 of the Act as are relevant for the present (and as applicable at the relevant point of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich shall not be less than one hundred rupees per day but which may extend to two hundred rupees for everyday during which the failure continues, subject to the maximum penalty not exceeding the amount of service tax which was not paid. So far as Section 76 of the Act is concerned, it is not possible to read any further discretion, further than the discretion provided by the legislature when legislature has prescribed the minimum and the maximum limits. The discretion vested in the authority is to levy minimum penalty commencing from one hundred rupees per day on default, which is extendable to two hundred rupees per day, subject to a cap of not exceeding the amount of service tax payable. From this discretion it is not possible to read a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one reads the power in the provision as contended by the respondent it would mean that the provision is re-drafted by incorporating words which are not there. At the cost of repetition, it is required to be stated that the language of the provision as it stands is unambiguous and it is not necessary to add any words to make the provision intelligible. 12. Therefore, even on a conjoint reading of Sections 76 and 80 of the Act it is not possible to envisage a discretion as being vested in the authority to levy a penalty below the minimum prescribed limit. If the authority imposing the penalty is not entitled to levy below the minimum prescribed the appellate authority and the Tribunal cannot read the provision so as being vested with such p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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