K.L. Manjunath, J.
1. This appeal is filed under Section 35 of the Central Excise Act by the Commissioner of Central Excise, Mangalore challenging the order passed by the CESTAT, Bangalore in Appeal No. ST/26/2005. The said appeal was filed by the present appellant-the Commissioner of Central Excise, Mangalore challenging the order passed by the Commissioner of Central Excise (Appeals), Mangalore in Appeal No. 12/2004 CE dated 21-1-2004 wherein, the appeal filed by the respondent Viswanath Karkera was allowed in part by reducing the penalty from Rs. 31,710/- to Rs. 5,000/- under Section 76 of the Act. Against the same, the appellant herein had filed an appeal before the Customs, Excise & Service Tax Appellate Tribunal (hereinafter referred to as 'Tribunal' for short). The Tribunal has confirmed the order passed by the Commissioner of Central Excise (Appeals), Mangalore as per Annexure-D dated 11-11-2005.
2. We have heard the learned Counsel appearing for both the parties.
3. According to the learned Counsel for the appellant there is no provision under the Finance Act, 1994 enabling the Commissioner to reduce the penalty levied by the original authority. He further contended that when there is no provision under the Finance Act to reduce the penalty, the Commissioner as well as the Tribunal have committed a serious error in reducing the penalty from Rs. 31,710/- to Rs. 5,000/-.
4. In this background, we have examined the provision of Section 76 of the Finance Act, 1994.
5. As per Section 76(1)(b)(ii) of the Finance Act, 1994, the concerned Officer is entitled to levy penalty a sum which is not less than Rs. 100/- per day of failure but which may extend to Rs. 200/- per day and if such failure continues, with a maximum limit which shall not exceed the amount of service tax payable and the discretion is also vested in him in levying the penalty. When such discretion is granted to the officer concerned, we are of the opinion mat the Appellate Court can reconsider the matter and find out whether the discretion used by the authority was proper or not. Even though there is no provision under Section 76 to reduce the penalty, it does not mean that the Appellate Court is not vested with the power to reduce the penalty, if the discretion is not exercised by the Original Authority judiciously. In the circumstances, we do not see any merit in the appeal.
6. Accordingly, the appeal is dismissed following the aforesaid judgment.