TMI Blog2008 (4) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals arise out of the common order of the learned Tribunal dt. 14.8.2003, whereby the learned Tribunal has partly allowed the appeal, and modifying the order of the learned Commissioner, has reduced the penalty, inasmuch as the penalty imposed under Section 76 has been reduced to 10% of the duty demanded in both the Appeals no. 68 and 69, while the penalty under Section 77, in Appeal No. 69 has been reduced to Rs. 2000/-. 2. Appeal No.25 arises out of the judgment of the Tribunal in Appeal No.68, which in turn arises out of the order of the Commissioner in Appeal No.544 dated 27.9.2002, whereby the learned Commissioner has reduced the penalty imposed under Section 77 to the maximum permissible limit, while the penalty imposed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction? (2) Whether the Tribunal could entertain an appeal on merits when the appeal before the Commissioner was rejected because of default by the Assessee in payment of pre-deposit required under Section 35-F of the Central Excise Act, 1944? 5. So far as the question no.2 as involved in appeal no.4 is concerned, admittedly the requirement of predeposit has not been complied with. Even the learned Tribunal has not recorded any otherwise finding in this regard, and on the face of language of Section 35F, there is no escape from the conclusion, that the appeal was rightly dismissed by the learned Commissioner, and the learned Tribunal could not entertain the appeal on merits. Accordingly, this question is answered against the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to two hundred rupees for every during which such failure continues, so, however, that the penalty under this clause shall not exceed the amount of service tax that he failed to pay. 9. A look at the provisions of the section does show, that it does prescribe a minimum amount of penalty, by using the expression not less than . Of course, the upper limit has also been prescribed therein. The question precisely is, as to whether the Tribunal, or the authority below, have any authority to impose a penalty, which is even less than the amount permissible to be imposed by Section 76. Learned counsel for the assessee referred to the provisions of Section 80, and one judgment of Hon'ble the Supreme Court, in Dilip N. Shroff Vs. Join ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Where the two limits have been prescribed, being the minimum and upper limit, then obviously the free play is available between the two limits only, and the discretion can be exercised, within those limits, but then, that does not mean, that the authorities have any power to impose penalty less than the minimum prescribed by the Section. Accordingly question no.1 is answered in favour of the Revenue, and against the assessee. 12. However, a look at the orders, being the order in original, and that of the learned Commissioner shows, that under Section 76 a penalty in both the cases has been imposed equal to the amount of tax, while according to language of Section 76, the minimum and maximum penalties are prescribed, with the upper ceil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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