2013 (11) TMI 1408

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....;          I am not in agreement with the argument of the appellant that they should be extended benefit of either Section 73(1A) or Section 73(3). These are cases which came to light through audit of books and not through disclosure by assessee. That being the case there is element of suppression involved and the benefit of section 73(1A) could have been given only if 25% of duty was paid as penalty. Secondly, section 73(3) deals with recovery of tax not paid. Section 76 deals with penalty for delay in payment of tax. It is not possible to interpret these provisions to mean that an assessee can collect and keep the tax with him and deposit when it comes to the notice of the department and no pen....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....g a finding that there is an element of suppression involved in delaying the payment of service tax which was in dispute. Therefore, he submits that the finding in para 14 is wrong and the consequential order of upholding the penalty is also wrong and these may be set aside. 5. Opposing the prayer, the learned AR on behalf of Revenue submits that the appellant did not pay the entire amount of service tax and interest that they should have paid to get the benefit of Section 73(3) of the Finance Act, 1994. He submits that Explanation to 73(3) makes it clear that interest under Section 75 shall be payable on the amount paid under Section 73(3). Since that has not paid before issue of SCN, the appellant is not eligible for the benefit of Sec....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the benefit of Section 73(3) what is required is payment of disputed service tax amount before issue of show-cause notice. Explanation (1) is to the effect that interest will be payable. There is no provision that interest should be paid before issue of the show-cause notice as it was there in Section 73(1a) of the Act which stood at the relevant time. Therefore, the argument of the learned AR that there was short-payment of service tax and the interest paid cannot result in invoking penalty as is imposed by the lower authorities. I also notice that Section 73(3) clearly provides that notice shall not be issued in respect of amount so paid implying that if any short-fall is noticed, notice can be issued only for recovering such shortfall ....