TMI Blog2017 (7) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty on the appellant in exercise to the power of revision under Section 84 is not sustainable in law - appeal allowed - decided in favor of appellant. - ST/235/2009-SM - 20840/2017 - Dated:- 20-4-2017 - Shri S.S Garg, Judicial Member Shri M.S. Nagaraja, Advocate, For the Appellant Shri Parasivamurthy N.K., Deputy, Commissioner (AR), For the Respondent ORDER Per: SS GARG The present appeal is directed against the impugned order dated 09.09.2008 passed in revision by the Commissioner of Central Excise whereby the Commissioner has revised the Order-in-Original and imposed the penalties under the provisions of Section 76, 77 and 78 of the Finance Act in terms of Section 84 of the Finance Act. Briefly the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 84 of the Finance Act issued show-cause notice dated 05.02.2008 proposing to impose penalties under Sections 76, 77 and 78 of the Finance Act and after following the due process of law, the Commissioner has passed the Order-in-Revision imposing the penalties under Section 76, 77 and 78. Aggrieved by the said order, the appellants have filed the present appeal. 2. Heard both the parties and perused the records. 3. The learned counsel for the appellant submitted that the impugned order passed in Revision under Section 84 of the Finance Act 1994 imposing penalties on the appellant is not sustainable in law as the same has been passed contrary to the statutory provisions and against the binding judicial precedents. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of this Tribunal in the case of Sneha Minerals Vs. CCE, Belgaum [2011 (21) S.T.R. 657 (Tri. -Bang.)] wherein exactly identical issue was involved and the Division Bench of this Tribunal after considering all the provisions and the judgments of the Court has set aside the penalties imposed on the appellant. It is pertinent to reproduce the paras 7,8,9 of the said judgment which are reproduced herein below: 7. After considering the submissions, we note that there are two crucial factual aspects in this case which need to be taken note of Firstly, on 01.06.2007, Parliament, by incorporating sub-clause (zzzy) under clause (105) of Section 65 of the Act, acknowledged the fact that no service tax was leviable on the service of mining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Section 84 of the Act. The Hon'ble High Court, after considering these facts, held that there was no basis for the Commissioner to acquire jurisdiction to Impose penalty. It is pertinent to note that, in the instant case, no finding of fraud, collusion, suppression or the like was recorded by the Dy. Commissioner against the assessee. It is also crucial that the Dy. Commissioner's order invoking the 1 st proviso to Section 73(1) of the Act or recovery of Service tax for the extended period without recording any finding of suppression etc against the party was not sought to be revised under Section 84. The revisionary authority, under Section 84, Ivan ted only to impose penalties on the appellant under Sections 76, 77 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment etc., which could have been the basis for acquiring jurisdiction to impose the penalty. Accordingly, the Assessing Authority exercised the power under Section 80 of the Act and decided not to impose any penalty under Section 78. There was no basis for the Revisional Authority-cum-Commissioner to acquire the jurisdiction to impose penalty. There is no evidence produced before the revisional authority or any other authority to prove fraud, collusion, misrepresentation etc. so as to attract the application of Section 78 of the Act. In our view, the Tribunal has rightly restored the order of the Assessing Authority. Therefore, no question of law much less any substantial question of law would arise for determination of this Court. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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