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TMI Blog2008 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... ise and Customs, Nashik issued show cause notice to the appellant for enhancing the penalty imposed by the adjudicating authority under Section 76 of the Finance Act, 1944 (sic-1994). The appellants failed to pay service tax for the period July 2001 to September 2002, on being pointed out, discharged the entire service tax liability on 31.03.2003 with interest thereon. On considering the fact that the entire service tax liability interest has been discharged by the appellant, the order in-original No.71/2005 dt.27.04.2005 was passed by the Assistant Commissioner of Central Excise & Customs, (Service Tax), Nashik-IV Division appropriating the amount paid and imposed penalty of Rs.1,000/- under Section 76 and Section 77 of the Finance Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 31.03.2003. 7. I find that the Tribunal in the case of CCE, Bhopal Vs. Bharat Security Services & Workers Cont. [2005 (188) ELT 454 (Tri.-Delhi)] was considering an identical issue as regards the applicability of the Extra ordinary Taxpayer Friendly Scheme for the cases which were decided, before the said friendly scheme came into existences. I find that the Bench came to the following conclusion:- "I find that the service provider who registered and paid service tax during Extra Ordinary Tax Payer Friendly Scheme up to 30.10.2004, not liable to any penalty. Therefore, I find no infirmity in the finding of the Commissioner (Appeals) that the respondents to pay service tax along with the interest prior to 30.10.2004 are also not liable f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise Appeal No. 213/06 (filed by the Revenue) held as under:- "On the question of law as formulated in para 4(a), we find that on a consideration of Section 76 and 80, there is discretion in the authority of not imposing penalty. In the instant case, the Tribunal considering the facts on record has recorded a finding that the enhancement of penalty is arbitrary. This was within its discretion. This is purely an exercise in discretion based on a finding of fact which it was empowered. No question of law, therefore, arises", It can be noticed from the above reproduced ratio, the Hon'ble High Court has upheld the contention of the Tribunal, that penalty imposed under Section 76 is discretionary. As such, the penalty imposed in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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