COMMISSIONER OF CENTRAL EXCISE COMMISSIONERATE Vs. DARMANIA TELECOM

JUDGEMENT

(1.) THE revenue has challenged order dated 31.3.2008, passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi (for brevity, 'the Tribunal') by invoking Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 (for brevity, 'the Act'). It has been claimed that the following question of law would emerge from the order of the Tribunal for adjudication of this Court:

(2.) THE order -in -original was passed by the Assistant Commissioner on 15.6.2005 (A -1) and penalty of Rs. 1,000/ - under Sections 76 and 78 of the Act was imposed by exercising power vested in him under Section 80 of the Act. The aforesaid discretion exercised by the Assistant Commissioner was interfered with by the Commissioner while exercising revisional power under Section 84 of the Act by raising it to Rs. 31,652/ -. The Commissioner also recorded the finding that the assessee had suppressed the value of taxable service. However, the Tribunal set aside the order of the Commissioner passed in exercise of revisional power and restored the order -in -original by observing that leniency shown by the original authority in terms of Section 80 of the Act did not suffer from any illegality and could not have been interfered with by the revisional authority.

(3.) 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. As a consequence, the appeal fails and the same is dismissed.