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TMI Blog2008 (12) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... neither obtained the service tax registration from the Department nor paid the service tax. 2. A show-cause notice dated 21-8-2006 was issued to them demanding service tax of Rs. 3,90,054 under section 73 during the period from 10-9-2004 till 31-3-2006 along with the interest under section 75 and proposing penalties under section 76, section 77 and section 78. The service tax of Rs. 3,54,078 deposited on 13-l-2006/8-3-2006/10-4-2006 and interest of Rs. 17,050 deposited on 27-1-2006/28-1-2006/8-3-2006 were proposed to be appropriated against these liabilities. 3. The show-cause notice was adjudicated by the Assistant Commissioner, vide Order-in-Original dated 31-1-2007, in which the demand of service tax was reduced to Rs. 3,50,536, servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (2) of section 73, shall also be liable to pay a penalty, in addition to such service tax and interest thereon, if any, payable by him, which shall not be less than, but which shall not exceed twice, the amount of service tax so not levied or paid or short-levied or short-paid or erroneously refunded." (ii) The Tribunal has also not taken into consideration the fact that the phrase "no penalty shall be imposable" present in section 80 of the Act implies that the penalty can be completely waived off if the assessee proves that there was reasonable cause for the failure but there is no option to reduce the penalty below the minimum limit specified in section 78 by applying the provisions of section 80. In other words, if the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Order-in-Original dated 31-1-2007 passed by the Assistant Commissioner, by which the Assistant Commissioner imposed the penalty of Rs. 25,000 on the respondents under section 78 of the Finance Act, 1994 holding that the same is just and proper in the light of his findings. Nor the said order of the Assistant Commissioner has been taken up for revision by the Commissioner under section 84 of the Finance Act, 1994. Therefore, so far as revenue is concerned the order of the Assistant Commissioner imposing penalty of Rs. 25,000 on the respondents has become final. The revenue cannot go beyond that. 9. I further note that the entire service tax liability was paid by the respondents along with interest before the issuance of the show-cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order, has reduced the penalty to Rs.10,000 taking cognizance of section 80 of the Finance Act, 1994. The Hon'ble Bombay High Court in the case of CCE& Cv. Ashish Vasantrao Patil [Central Excise Appeal No. 4 of 2007, dated 18-10-2007] dismissed the appeal of the revenue holding that the penalty was reduced by the Tribunal-AR. Ashish V. Patil v. CCE [2006] 5 STT 325 (Mum.-CESTAT) exercising discretion and recording reasons therefore under section 80 of the Finance Act, 1994. Similarly, the Hon'ble Bombay High Court in the case of CST v. Lark Chemicals [Central Excise Appeal No. 241 of 2006, dated 30-8-2007] observed that the High Court in similar cases held that section 76 ibid is subject to section 80 ibid and discretion to redu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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