S.J. ANTHONY Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) This is an application filed by the party for restoration of appeal which has been dismissed for non -appearance. On considering the difficulties explained by the party earlier order is recalled and appeal is restored to its Original Number and taken up for regular hearing.

(2.) Issue relates to levy of penalty under Sections 76 and 77 of the Finance Act, 1944. The Commissioner who reviewed the order passed by the Assistant Commissioner has imposed a penalty of Rs. 12,323/ - on the ground that there was delay in making payment of service tax. It was brought to my notice that party has gone to the High Court of Andhra Pradesh and the Hon'ble High Court as per its order dated 22 -2 -2001 had held that no penal action should be taken if the appellants comply with the requisite formalities prescribed by or under the statute and pay the arrears of service tax on or before 22 -4 -2001 with interest as per the provisions of the Act. It was submitted by the party that arrears of service tax was duly paid before 22 -4 -2001. Further it was also brought to my notice that the very Bench of this Tribunal as per Final Order Nos. 843 to 846/2003 dated 27 -6 -2003 has taken a view that if the adjudicating authority had exercised discretion in imposing the penalty with reference to the facts of the case, there was no justification for the Review authority to enhance the penalty on the ground that Section 76 prescribes minimum penalty of Rs. 100/ - for everyday.

(3.) Heard Shri Narasimha Murthy learned DR for the Revenue.