TaxTMI 
TaxTMI 
2016 (2) TMI 174
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.... of service tax is permissible under Section 78 of the Finance Act, 1994 when the appellant has admittedly paid the entire service tax with interest before filing ST-3 returns, and thereafter disclosing full and complete facts and details about taxable services, service tax liability and service tax paid for such liability while filing the returns? (2) Whether imposition of penalty equal to amount of service tax permissible in the facts of this case when the appellant has admittedly discharged the entire service tax liability with interest for late payment of service tax when the inquiry was conducted thereby showing bonafide in respect of late payment of service tax? (3) Whether penalty equal to the amount of service tax ....
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....e issuance of the show cause notice. Reliance was placed on Sections 80 and 73 of the Finance Act, 1994 in this respect. The Tribunal, however, rejected such a contention making following observations: "3. Heard both the sides and perused the case records. The appellant is not contesting the payment of Service Tax on merits. The only argument of the appellant is that penalty under Section 78 of the Finance Act, 1994 is not imposable as the entire Service Tax demand along with interest, was paid before the issue of show cause notice. It was also their case, that Service Tax required to be paid under reverse charge mechanism was admissible as Cenvat Credit to the appellant and accordingly there cannot be any intention to evade paymen....
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....is required to be upheld". 5. It can thus be seen that the Tribunal came to the factual finding that the assessee had recovered service tax from service recipients. The assessee was also registered with the Central Excise Department for providing several services including the service in question on which service tax was required to be paid on reverse charge basis. It was held that having collected such tax from the service recipients and having been registered in respect of such service, the assessee was required to pay service tax to the Excise Department. The assessee had not filed requisite periodical returns and the fact of non payment of service tax came to light of the Department only as a result of special investigation. The Trib....
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....ax is paid before issuance of show cause notice, the officer shall not serve any notice under sub-Section (1) in respect of such amount. Explanation (2) of Sub-Section (3) of Section 73 provides that no penalty under any of the provisions of this Act or the rules would be imposed in respect of payment of service tax under the sub-section and interest thereon. However, Sub-Section (4) of Section 73 which is material for our purpose reads as under: "(4) Nothing contained in Sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or short paid or erroneously refunded by reason of- (a) fraud; or (b) collusion; or (c) willful mis-statement; or (....