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TMI Blog2010 (11) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... Harsha Devani and H.B. Antani, JJ. Shri Darshan M. Parikh, for the Appellant. Rule Served, for the Respondent. JUDGMENT In this appeal under Section 35G of the Central Excise Act, 1944, the appellant-Revenue has challenged order dated 19th May, 2009 [2009 (16) S.T.R. 738 (Tri.-Ahmd.)] made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following questions :- (i) Whether the penalty under Section 76 of the Finance Act, 1994 can be reduced below the minimum limit prescribed? (ii) Whether the penalty under Section 76 of the Finance Act, 1994 can be dropped without invoking Section 80 of the Finance Act, 1994? 2. The respondent is a holder of Service Tax Registration un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority to impose a lesser penalty than that provided under the said provision. That as such, the Commissioner (Appeals) was not justified in reducing the penalty imposed under Section 76 of the Act and that the Tribunal was not justified in confirming the same. In support of his submissions, the learned counsel placed reliance upon a decision of the Court in the case of Commissioner, Central Excise and Customs v. Port Officer rendered on 8th July, 2010 in Tax Appeal No. 1367 of 2009 [2010 (257) E.L.T. 37 (Guj.) = 2010 (19) S.T.R. 641 (Guj.)] to submit that the controversy in issue stands concluded by the said decision in favour of the Revenue. 5. Despite service of notice for final disposal, there is no appearance on behalf of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posable. It was further held that on a conjoint reading of Section 76 and Section 80 of the Finance Act, 1994, it is not possible to envisage a discretion as being vested in the authority to levy penalty below the 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. 7. The aforesaid decision would be squarely applicable to the facts of the present case wherein the Commissioner (Appeals) had educed the penalty below the minimum prescribed by resorting to the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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