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TMI Blog2010 (11) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed limit. If the authority imposing the penalty is not entitled to levy below the minimum prescribed, the appellate Court and the Tribunal cannot read the provision so as being vested with such powers, namely, to reduce the penalty below the minimum prescribed. The Court accordingly answered the question in the negative.The penalty under Section 78 of the Finance Act, 1994 cannot be reduced below the minimum prescribed by invoking Section 80 of the Finance Act, 1994.- Appeal is allowed by way of remand to Tribunal. - 780 of 2010 - - - Dated:- 25-11-2010 - Harsha Devani and H.B. Antani, JJ. COMMISSIONER Versus TARGET POLYMERS PVT. LTD. REPRESENTED BY : Shri Darshan M. Parikh, for the Appellant. [Judgment per : Harsha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order-in-Original dated 16th January, 2009 by the Adjudicating Authority wherein service tax of Rs. 4,81,121/- came to be confirmed against the assessee under Section 73 of the Finance Act, 1994 (the Act) alongwith interest. Penalty of Rs. 1,000/- came to be imposed under Section 77 and penalty of Rs. 4,81,121/- came to be imposed under Section 78 of the Act. Being aggrieved, the assessee carried the matter in appeal before the Commissioner (Appeals), who vide order dated 28th April, 2009 confirmed the service tax with interest. He, however, inter alia reduced the penalty imposed under Section 78 of the Act from Rs. 4,81,121/- to Rs. 1,00,000/- by resorting to the provisions of section 80 of the Act. Revenue carried the matter in appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 80 of the Act. This Court, in the case of Commissioner, Central Excise and Customs v. Port Officer (supra) was dealing with the question as to whether penalty under Section 76 of the Finance Act, 1994 can be reduced below the limit prescribed by the section. The Court held that section 80 of the Act overrides the provisions of Section 76, Section 77, Section 78 and Section 79 of the Act and provides that no penalty shall be imposable even if any one of the said provisions are attracted, if the assessee proves that there was reasonable cause for failure stipulated by any of the provisions. Whether a reasonable cause exists or not is primarily a question of fact. The provision indicates that the onus to establish reasonable c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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