Hon'ble Judges/Coram:
S.S. Garg, Member (J) and Ashok K. Arya

ORDER

S.S. Garg, Member (J)

1. The present appeal is directed against the order passed in Revision No. 33/2006 dated 17.08.2006 vide which the Commissioner in exercise of his revisionary power imposed the penalty which was dropped by the adjudicating authority in exercise of his power under Section 80 of the Act. Briefly the facts of the present case are that the appellant is engaged in providing security agency service and is liable to pay service tax w.e.f. 16.10.1998 and he has been paying the service tax and filing periodical returns. The dispute in the present appeal relates to the period 01.10.2003 to 31.03.2004 wherein there was a delay on the part of the appellant in making the payment of service tax as required under Section 68 of the Act read with Rule 6 of the Service Tax Rules 1994. Subsequently the appellant paid the service tax due along with interest in terms of Section 75 of the Act. Thereafter a show-cause notice dated 02.07.2004 was issued to the appellant. The appellant filed the detailed reply to the show-cause notice stating the reasons for delay in filing the returns and has also stated that he has paid the service tax voluntarily along with interest under Section 75. The adjudicating authority vide Order-in-Original dated 19.08.2004 confirmed the service tax demand of Rs. 37,53,087/- (Rupees Thirty Seven Lakhs Fifty Three Thousand and Eighty Seven only) and appropriated the service tax amount voluntarily paid by the appellant and also appropriated the interest paid by the appellant but did not impose any penalty under Section 76, 77 and 78 by exercising his judicial discretion vested in him under Section 80 of the Act. Subsequently the respondent-Commissioner reviewed the matter and issued a show-cause notice under Section 84 of the Act proposing the imposition of penalty and after hearing the appellant passed the impugned order dated 17.08.2006 and imposed the penalties under Section 76, 77 and 78 of the Act which is under challenge in the present appeal. We have heard the learned counsel for the parties and perused the records.

2. Learned counsel for the appellant admitted the delay in filing the half yearly return for the period in dispute due to genuine reasons and due to financial crunch. He also submitted that the delay has occurred for the first time due to various bona fide reasons. He also submitted that the appellant voluntarily made the payment of service tax along with interest which is not disputed by the respondent. He also submitted that the adjudicating authority in Order-in-Original has recorded the finding that there was no malafide intention on the part of the appellant to suppress the value of taxable service and also noted the fact of payment of service tax along with interest. After recording this finding the adjudicating authority did not choose to impose any penalty under Section 76, 77 and 78 by exercising his judicial discretion vested in him under Section 80 of the Act. The learned counsel further submitted that the revisionary authority does not have any power to interfere in the discretionary power of the adjudicating authority and in support of his submission he relied upon the following decisions:

"a) Final Order No. 648/2012 dated 17.09.2012 passed by the Hon'ble CESTAT, Bangalore in the case of M/s. Lion Security Services Bangalore

b) CCE v. Darmania Enterprises MANU/PH/0106/2009 : 2009 (14) S.T.R. 741 (P&H)

c) CST v. Handimann Services Ltd. MANU/KA/2011/2011 : 2011 (24) S.T.R. 641 (Kar.)

d) CST v. Motor World