TMI Blog2010 (11) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Act, 1944, the appellant-revenue has challenged order dated 23rd October, 2009 made by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) proposing the following questions :- (I) Whether the penalty under Section 76 of the Finance Act, 1994 can be reduced below the minimum limit prescribed? (II) Whether the penalty under Section 76 of the Finance Act, 1994 can be dropped without invoking Section 80 of the Finance Act, 1994? (III) Whether the Tribunal in law was entitled to come to a conclusion regarding the unawareness regarding tax liability/bona fide on the face of the fact that they had collected Service Tax, with a finding of fact on this behalf? 2. The respondent-assessee is holding Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stified in confirming the same. In support of his submissions, the learned counsel placed reliance upon a decision of this Court in the case of Commissioner, Central Excise and Customs v. Port Officer rendered on 8th July, 2010 in Tax Appeal No. 1367 of 2009 [2010 (19) S.T.R. 641 (Guj.) = 2010 (257) E.L.T. 37 (Guj.)] to submit that the controversy in issue stands concluded by the said decision in favour of the revenue. 4. Pursuant to the notice for final disposal issued by the Court, the respondent-assessee has vide communication dated 5th October, 2010, requested that the matter be adjourned for a month or one and a half months to enable him to prepare his defence and reply in consultation with his lawyer. However, despite a period of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shment of reasonable cause, a reduced quantum of penalty is imposable. The provision only says that no penalty is imposable. It was 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. If the authority imposing the penalty is not entitled to levy below the minimum prescribed, the appellate Court and the Tribunal cannot read the provision so as being vested with such powers, namely, to reduce the penalty below the minimum prescribed. The Court accordingly answered the question in the negative. 7. The aforesaid decision would be squarely applicable to the facts of the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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