TMI Blog2009 (1) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... hat penalty not imposed by the Deputy Commissioner in exercise of his discretion could not be imposed by the Commissioner in review proceedings – impugned order imposing penalty u/s 76 is not sustainable - impugned order is set aside & appeal allowed - S/PD/119/08 & S/135/08 - 45/2009 - Dated:- 9-1-2009 - Mr. P. Karthikeyan, Member (Technical) Shri G. Natarajan, Advocate, for the Appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants during the material period. This order has been challenged before the Commissioner (Appeals), Salem and the appeal is pending decision. In the meanwhile, the Commissioner (Appeals) Salem initiated review proceedings under Section 84 of the Act and passed the impugned order imposing equal amount of penalty under Section 76 of the Act. 2. Moving the application for waiver of predeposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osal. In the impugned order, in relation to review proceedings initiated under Section 84 of the Act, the Commissioner imposed a penalty under Section 76 of the Act which the original authority had found not called for in the facts of the case. The liability to differential service tax fastened on the appellants has been challenged and is pending decision by the Commissioner (Appeals). Sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Karnataka, it was held that penalty not imposed by the Deputy Commissioner in exercise of his discretion could not be imposed by the Commissioner in review proceedings. In view of the ratio of these judicial authorities, the impugned order imposing penalty under Section 76 of the Act on the appellants is not sustainable. Accordingly, the impugned order is set aside and this appeal allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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