TMI Blog2010 (10) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944, proposing to formulate the following substantial question of law for determination and consideration by this Court : Whether the penalty under Section 76 of the Finance Act, 1994 can be reduced below the limit prescribed by the section? 2. Heard Mr. Darshan Parikh, learned Senior Standing Counsel appearing for the appellant-revenue. Despite service of notice nobody appears on behalf of the respondent. 3. The brief facts of case are that M/s. B.S.G.K. Shastry, 17-A-NS, Reliance Greens, Motikhavadi, Dist-Jamnagar (hereinafter referred to as the respondent ) has been holding Service Tax Registration bearing Regn. No. JMN/MRA-04/S. TAX/2006-2007 under Section 69 of the Finance Act, 1994 (32 of 1994) (hereinafter referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of Service Tax to the Central Government within the prescribed time limit. Therefore, Show Cause Notices were issued asking them to explain why penalty should not be imposed upon them under Section 76 of the said Act for failure to make the payment of Service Tax within prescribed time limit under Section 77 of the said Act for failure to file the Service Tax Return in form ST-3 within prescribed time-limit. 8. The Adjudicating Authority vide Order-in-Original No. 038/Service Tax/2008 dated 28-1-2008 and 992 to 993/Service Tax/2007 dated 3-10-2007 imposed penalty of Rs. 74,049/- and 86,738/- under Section 76 of the said Act and Rs. 1000/- under Section 77 of the said Act respectively. 9. Being aggrieved by the said O-I-O, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onjoint reading of Sections 76 and 80 of the Act, it is not possible to envisage a discretion as being vested in the authority to levy a penalty below the minimum prescribed limit. If the authority imposing the penalty is not entitled to levy below the minimum prescribed, the appellate authority and the Tribunal cannot read the provision so as being vested with such powers, namely, to reduce the penalty below the minimum prescribed. This Court has, therefore, answered the question accordingly in the negative and the said tax appeal was disposed of. 14. Following the aforesaid decision of this Court, we hereby quash and set aside the impugned order of the Tribunal and restore the matter to the file of the Tribunal to decide the issue afre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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