Judgment
1. This appeal is directed against the order-in-revision made by the learned Commissioner of Central Excise, Mumbai on 14-9-2004 revising the penalty amount of Rs. 80,000/-imposed by the Additional Commissioner of Central Excise vide order-in-original No. 10/2002, dated 30-9-2002 under Section 76 of the Finance Act, 1994, and imposing a penalty of Rs. 200/- for each day, during the period of failure to pay service tax from the day it became due till it is paid, subject to total penalty under Section 76 of the said Act which was not to exceed Rs. 36,90,965/-, being the service tax due to be paid. The Commissioner has made the impugned order under Section 84(1) of the said Act which empowered him to call for the record of the proceedings taken by the Assistant Commissioner or Deputy Commissioner and make an appropriate order thereon.2. Admittedly, appeals were filed against the order-in-original before this Tribunal, being appeals No. ST/73-74/04 and these were decided on 28-6-2005 [2006 (1) S.T.R. 80 (Tribunal)]. The Tribunal while confirming the demand of service tax, set aside the order of the Commissioner (Appeals) dated 30-1-2004 by which the order-in-original was confirmed, only to the extent that it imposed a penalty of Rs. 80,000/-. Thus while the liability for payment of service tax came to be finally upheld by the Tribunal, the penalty which was imposed by the order-in-original and confirmed by the Commissioner (Appeals) came to be set aside on 28-6-2005. However, on the mean time, the Revisional Commissioner had called for the record of the order-in-original dated 30-9-2002 and enhanced the penalty which was imposed by the impugned order dated 14-9-2004, as aforesaid. Since the order-in-original imposing penalty which was confirmed by the Commissioner (Appeals) has been set aside by the Tribunal on 28-6-2005, the impugned revisional order dated 14-9-2004 enhancing the penalty which was imposed under the order-in-original cannot be sustained especially when the Tribunal has now held that imposition of penalty was not at all justified in this case in view of the provisions of Section 80 of the said Act which enabled the assessee to prove that there was a reasonable cause for his failure to pay the service tax. The Tribunal has given detailed reasons for holding that penalty could not be imposed while setting aside the order of penalty. In this view of the matter, the revisional order of the Commissioner enhancing the penalty made on 14-9-2004 cannot be sustained. The impugned order is, therefore, hereby, set aside. The appeal is accordingly allowed.