TMI Blog2018 (9) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... evisional authority had no jurisdiction to interfere with the said orders as the authority held that there was sufficient cause for non-payment of duty. Therefore, the order passed by the revisionary authority is erroneous and calls for interference. Tribunal in the case of S-Mac Security Services Pvt. Ltd. Vs. CST, Bangalore [2016 (8) TMI 15 - CESTAT BANGALORE], after noting the fact that the service tax along with interest has been voluntarily paid by the appellant before issuance of show-cause notice, has set aside the penalty imposed by Revisionary Authority under Sections 76 to 78. Imposing penalty by exercising revisionary power is not sustainable in law - appeal allowed - decided in favor of appellant. - ST/174/2007-DB - Final ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o evade payment of service tax and that the appellant had earnestly made good the payment of service tax liability immediately on being pointed out by the Department and this action on the part of the appellant diluted the offence committed and there was no deliberate intention to evade the payment of service tax due to the Department. Further, the Assistant Commissioner by invoking the discretion under Section 80 of the Act, dropped penalty under Sections 76 and 77 but imposed ₹ 20000/- under Section 78. The Order-in- Original was not challenged neither by the appellant nor by the Department and has attained finality. Further on 26/09/2006, the Commissioner of Service Tax issued a review show-cause notice under Section 84 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not partly. He further submitted that for imposing penalties under Section 76 and 78, there must be determination of service tax under Section 73(2) and in the absence of any determination of service tax under Section 73(2), no penalty is imposable. He further submitted that the impugned revision order under Section 84 has gone beyond the original proceedings and is passed on the findings which are beyond the original proceedings. There was no invocation of extended period as envisaged in proviso to Section 73(1) in the original proceedings and there was no allegations in spite of that the impugned order records finding that there was suppression of material facts resulting in evasion of service tax. It is his further submission that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority has dropped the penalty under Sections 76 and 77 and only imposed ₹ 20,000/- penalty under Section 78. Further we find that the appellant as well as the respondent has not challenged the said Order-in-Original. Thereafter the Commissioner under his revisionary power issued the show-cause notice by invoking the extended period and recorded findings that there was suppression of material facts resulting in evasion of service tax. Further, we find that this issue was considered by the Hon ble High Court of Karnataka in the case of Motor World (supra) wherein the Hon ble High Court after considering the scope of revision power of the Commissioner to impose penalty which was dropped by the original authority in exercise of his d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revisional authority has no power to enhance the amount of penalty on the ground that it is less. (7) When the assessing authority, in its discretion has held that no penalty is leviable, by virtue of Section 80 of the Act, the revisionary authority cannot invoke its jurisdiction and impose penalty for the first time. 6.2. Further we find that the Punjab Haryana High Court in the case of CCE, Jalandhar Vs. Darmania Telecom [2009(14) STR 145 (P H)] has held as under:- 3. Having heard learned Counsel for the Revenue we are of the view that the provisions of Section 80 of the Act in un-mistakable terms provide that despite the provisions of Section 78, no penalty should be imposed on the assessee for any failure referred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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