2015 (11) TMI 524

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....es. During the course of checking of records it was observed by the officer that during 2005-06 appellant had short paid service tax Rs. 48,702/-. However, the on pointed out by the department, the appellant vide letter dated 5/3/2010 informed that they have paid service tax outstanding against them. The show cause notice issued to the appellant for appropriation of service tax paid and imposition of penalty. Vide order-in-original, the adjudicating authority appropriated the service tax Rs. 48,702/- and interest paid by the appellant. He has also imposed penalty of Rs. 200 per day during which such failure continues or at the rate of two percent of such tax per month whichever higher starting with first day after due date till the date of ....

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....pellants ground of appeal before the Commissioner (Appeals) as well as in the present appeal is for the waiver of penalty invoking Section 73(3) of Finance Act, 1994. He submits that show cause notice issued invoking extended period, extended period invoked only when there is suppression of facts, fraud, collusion etc with intent to evade payment of service tax. It is his submission that when the non payment of service tax in this case is due to suppression of fact, collusion, fraud etc, provisions of Section 73(3) has no application in term of Section 73(4). Since in the present case the demand is admittedly for longer period and appellant has paid the same admittedly immunity provided under Section 73(3) cannot be extended to the appellan....