2009 (5) TMI 109

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....ppellant. Shri Ashok N. Zala, Advocate, for the Respondent. [Order]. - Revenue is in appeal against that part of the impugned order of Commissioner (Appeals) vide which he has reduced the penalty imposed under Section 76 from Rs. 1,30,860/- to Rs. 41,000/-, while confirming the service tax of identical amount. For reducing the penalty Commissioner (Appeals) has observed as under :  "....

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....(8) SIR. 81 (Tri.-Mumbai) and Golden Security Service v. C.C.EX., Siliguri reported in 2007 (8) S.T.R. 135 (Tri. - Kolkatta), Reliance Estate Agency v. CCE, Delhi reported in 2008 (1) S.T.R. 138 (Tri.-Delhi) and other judgments wherein the CESTAT uphold the Commissioner (A) order in waiver of penalty under Section 76. The ratio of the judgment is squarely applies to this case as the appellants pai....

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.... (Appeals) was of the view that there was bone fide on the part of the assessee, the resort to Section 80 could have been taken and the entire penalty could have been set aside. 3. Countering the arguments learned advocate submits that they had deposited the service tax along with interest before the issuance of the show cause notice and the reduced penalty also stands deposited by them within ....

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....ns are not assailed or rebutted by the Revenue in the memo of appeal. In such a scenario the appellate authority should have invoked the provisions of Section 80 and set aside the penalty in its totality. As such I do not find any justifiable reason for the Revenue's grievance for reduction of penalty. The appellants have filed the cross objections, the same have to be treated as an appeal. Howeve....