COMMISSIONER OF C. EX., MANGALORE Vs. VISWANATH KARKERA

JUDGEMENT

(1.) THE Revenue is aggrieved with the OIA No. 12/2004 C.E., dated 22 -1 -2004. The service tax was paid before the issue of show cause notice. The Commissioner has noted that the delay in paying service tax was due to prolonged strike at MCF and also due to the fact that the central office was shifted from Attavar to Bunts Hostel Road and due to misplacement of the file by the department. He has reduced the penalty under Section 76 from Rs. 31,710/ - to Rs. 5,000/ - and penalty under Section 77 is reduced from Rs. 1,000/ - to Rs. 250/ - Revenue contend that the Original Order imposing penalty should be restored.

(2.) HEARD learned SDR. On a careful consideration, I notice that the issue is no longer res integra as the Apex Court in the case of State of M.P. v. BHEL [1998 (99) E.L.T. 33 (S.C.)] has held that equal amount of penalty cannot be levied and Adjudicating Officer has got the discretion to reduce the same. Furthermore in terms of the Karnataka High Court judgment rendered in the case of CCE, Mangalore v. Shree Krishna Pipe Industries [2004 (165) E.L.T. 508 (Kar.)] and the Tribunal ruling rendered in the case of Rashtriya Ispat Nigam Ltd. v. CCE, Visakhapatnam [2003 (161) E.L.T. 285 (Tri. - Bang.)] which has been confirmed by the Supreme Court, penalty is not leviable if tax has been paid even before the issue of show cause notice. The appellants have not filed cross -appeal. Therefore the reduced penalty is required to be confirmed. There is no merit in this appeal and the same is rejected.