COMMISSIONER OF CENTRAL EXCISE Vs. BHAKYA BEAUTY PARLOUR

JUDGEMENT

(1.) THE short question arising in this case is whether the quanta of penalties imposed on the respondent by the lower appellate authority under Sections 76 and 78 of the Finance Act, 1994 are liable to be enhanced as pleaded by the Revenue.

(2.) THERE is no representation for the respondent despite notice (served on them by the Department and duly acknowledged). The appellant is represented by the learned SDR. There is no request of the respondent for adjournment of hearing.

(3.) IT is submitted by the learned SDR that this Tribunal has no power to reduce the quantum of penalty under Section 76 below the mandatory minimum as held by the Rajasthan High Court in the case of Union of India and Anr. v. Aakar Advertising 2008 -TIOL -303 -HC -RAJ -ST. Therefore, the penalty on the respondent must be Rs. 100/ - per day of default as imposed by the original authority. After a perusal of the Hon'ble High Court's judgment, I have to accept the argument. As regards the penalty under Section 78, the learned SDR reiterates the relevant averments in the memo of appeal. But I have not found any averment relevant to the issue, in this appeal. What the appellant says is that, "if the Commissioner (Appeals) is satisfied that the service provider is not having any intention for evading tax, imposition of penalty under Section 78 of the Finance Act could have been totally dispensed with under Section 80". The finding of the lower appellate authority that the assessee had no intention to evade payment of service tax has not been challenged. In the circumstances and in view of the above averment of the appellant, even the penalty imposed on the respondent by the Commissioner (Appeals) is liable to be vacated. However, I do not do so in the absence of the assessee's appeal against the said penalty.