9911796707
TMI Blog2009 (1) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... DR and he has submitted an acknowledgement receipt from the respondents on 10-12-2008. The respondents have still not appeared nor sought adjournment though they got the notice one month in advance. In view of the same I am deciding the appeal by perusing the records and the submissions made by ld. DR before me. 3. Brief facts of the case are that the respondents were engaged in providing Services of Clearing & Forwarding Agents to M/s. Grasim Industries Ltd. but have neither registered themselves nor paid any Service Tax during the period 1-10-1999 to 31-12-2004 when the matter was detected by the Preventive Officers of the Department. The respondents were issued show-cause notice requiring them to pay service tax of Rs. 3,41,298 along wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act, but does not provide the discretion to reduce the quantum of penalty less than the service tax amount so determined under section 73 of the Finance Act, 1994. In view of this it was submitted that Commissioner (Appeals) reducing the penalty from Rs. 3,65,940 to Rs. 60,000 was incorrect and should be set aside. 5. Ld. DR referred to the Tribunal's decision in the case of B.L. Mantri & Associates (P.) Ltd. v. CCE [2006]4 STT 228 (New Delhi-CESTAT), wherein it was held that minimum penalty of Rs.100 per day imposed under section 76 of Finance Act, 1994 cannot be reduced when there are no grounds for reduction in penalty. In that case the plea of the assessee that the delay in payment was on account of change in staff did not find f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to maximum of service tax evaded being Rs. 3,65,940 and this is total consonance with the provisions of section 76 wherein penalty cannot exceed the amount of service tax not paid. It appears that no penalty has been imposed under section 78 where the minimum penalty is equal to service tax not paid. This was never challenged before Commissioner (Appeals). Once no penalty appears to have been imposed by the adjudicating authority under section 78 which order has not been challenged before the Commissioner (Appeals), an appeal filed by revenue questioning the quantum of penalty under section 78, cannot be sustained. In view of this I find no merits in revenue's appeal and accordingly dismiss the same. X X X X Extracts X X X X X X X X Extracts X X X X
|
