TMI Blog2010 (11) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... ions -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 - Therefore, the penalty under Section 76 of the Finance Act, 1994 cannot be reduced below the minimum prescribed by invoking Section 80 of the Finance Act, 1994. - 828 of 2010 - - - Dated:- 25-11-2010 - Harsha Devani and H.B. Antani, JJ. REPRESENTED BY : Shri Darshan M. Parikh, Standing Counsel, for the Appellant. [Judgment per : Harsha Devani, J. (Oral)]. In this appeal under Section 35G of the Central Excise Act, 1944, the appellant revenue has challenged order dated 23rd October, 2009 made by the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 41,800/- imposed under Section 76 of the Act to Rs. 12,000/- by invoking Section 80 of the Act. Revenue carried the matter in appeal before the Tribunal but did not succeed. 3. Mr. Darshan Parikh, learned Senior Standing Counsel for the appellant submitted that in the light of the provisions of Section 76 of the Act, it was mandatory to impose penalty in terms of the said provision. That there was no discretion vested in the authority to impose a lesser penalty than that provided under the said provision, and 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 couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the section. The Court held that Section 80 of the Act overrides the provisions of Section 76, Section 77, Section 78 and Section 79 of the Act and provides that no penalty shall be imposable even if any one of the said provisions are attracted, if the assessee proves that there was reasonable cause for failure stipulated by any of the provisions. Whether a reasonable cause exists or not is primarily a question of fact. The provision indicates that the onus to establish reasonable cause is on the assessee. Once reasonable cause is established, the authority has discretion to hold that no penalty is imposable. The provision does not say that even upon establishment of reasonable cause, a reduced quantum of penalty is imposable. The provision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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