2018 (8) TMI 423

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....Audit of Accounts, it was noticed that the appellants had only partly discharged the service tax for the month of February, 2009. Further, no service tax was paid for the period from March, 2009 to December, 2009. They had also not filed ST-3 returns for the period ending March, 2009 and September, 2009. On being pointed out, the appellants admitted the liability and paid part of the service tax along with interest. Show Cause Notice dt. 12.04.2010 was issued proposing to demand service tax to the tune of Rs. 61,13,273/- along with interest and for imposing penalties. After due process of law, the Original Authority confirmed the demand, interest and imposed equal penalty under Section 78 and penalty under Section 77 also. Aggrieved, the ap....

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....appellant had no intention to evade payment of service tax and that it was only an instance of delayed payment of service tax. 2.3 She relied upon the decision of the Hon'ble High Court of Hyderabad for the State of Telangana and the State of Andhra Pradesh in C.C.E., Visakhapatnam Vs. M/s. Tirupathi Fuels Pvt. Ltd. reported in 2017-TIOL-1075-HC-AP-CX. She also relied upon the decision in the case of Shridhar Castings Pvt. Ltd. Vs. Commissioner of Central Excise & Customs, Nagpur [2015-TIOL- 1199-CESTAT-DEL], M/s. Jwalla Security Force Vs. Commissioner of Service Tax Cell, Nagpur [2015-TIOL-2397-CESTAT-MUM] and also a Final Order passed by this Tribunal (Final Order No. 41943/2018 dt. 06.07.2018). 3.1 The Ld. AR Shri. S. Govindarajan ....

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.... --do-- 24-2-2010 4,69,560/- 23,747/- --do-- 24-2-2010 6,95,152/- 27,482/- --do-- 24-2-2010 5,16,741/- 25,766/- --do-- 27-5-2010 6,85,434/- 34,422/- --do-- TOTAL 61,13,273/- 4,12,733/-     5.2 The Show Cause Notice was issued on 12.04.2010. It can be seen that the appellant has paid a substantial amount prior to issuance of Show Cause Notice. The Ld. Counsel submitted that the short payment was because of financial shortage of funds and due to administrative difficulties. It is her case that in the Manpower Supply Recruitment Services, there is much problem of receiving the paymen....

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....nt. True, at the time of issue of Notice, the competent authority may have taken the view that the provisions of Sub-section 4 of Section 73 ibid. are present in the case and, hence, Show Cause Notice will require to be issued. In fact, we are not finding fault with the issue of the Show Cause Notice in this case. But once it has been found, albeit by hindsight and pursuant to adjudication proceedings, that the ingredients of Section 73(4) ibid. are not present, and the notice would otherwise not have been required to be issued, this by itself, in our view, is a reasonable cause to invoke the provisions of Section 80 ibid. for waiver of any remaining penalties that may have been issued by the adjudicating authority. The Ld. AR had argued th....

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....ount Housing & Infrastructure Ltd. Vs. C.C.E. & S.T., Coimbatore, (supra) has occasion to analyse a similar issue. The relevant paragraph is noticed as under : 6. I have considered submissions on both sides. Imposing penalty equivalent to Service Tax paid belatedly in this case will amount to putting the appellant who paid tax before issue of SCN and interest before adjudication at a more disadvantageous position as compared to an assessee who would not have paid any tax and did not file any return. In latter type of cases penalty under Section 78 would be applicable and the assessee gets concession in paying 25% of duty as penalty if such payment is made promptly. The argument raised by Revenue can be canvassed even in a situation....