2018 (12) TMI 1362

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....out by the audit, the appellants paid the service tax of Rs. 2,07,426/- along with interest of Rs. 1,52,508/-. Again for the period 2012-13, during the course of the audit of ST-3 returns, the appellant assessee were asked to pay service tax amounting to Rs. 2,98,587/- along with interest. Show-cause notice dated 22.01.2016 was issued stating as under:- "(a) An amount of Rs. 2,98,587/- (Rupees Two lakh Ninety Eight thousand Five Hundred and Eighty Seven only) should not be demanded from the assessee towards service tax (including cesses) on services rendered in 2012-13, as discussed supra; (b) An amount of Rs. 2,98,587/- (Rupees Two lakh Ninety Eight thousand Five Hundred and Eighty Seven only) already paid should not be appropriated ....

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....the statutory provisions and the relied upon case laws. It is his submission that the service tax amounting to Rs. 2,07,426/- for the years 2009-10, and 2010-11 was paid by the appellants in the year 2014 along with interest amount of Rs. 1,52,508/-. Learned counsel argued that the show-cause notice dated 22.01.2016 did not demand the service tax of Rs. 2,07,426/- as the maximum stipulated period for demand is 5 years in terms of Proviso to Section 73(1) of the Finance Act 1994. He further argued that when there is no scope to demand service tax of Rs. 2,07,426/- under Section 73 of the Finance 1994, there is no scope to impose any penalty under Section 78 of the Act as Section 78 ibid is a consequence of the provisions of Section 73(1) of ....

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..... 6. I find that the appellants are engaged in providing solar fencing systems to their customers and owing to some tax concessions, available to the solar power sector they were under the bonafide belief that their activities are not subject to payment of Service Tax. Subsequent to audit of their accounts, it was pointed out that they are liable to service tax under the category of "maintenance or repair services". The appellant/assessee being a proprietary concern immediately paid the entire liability of service tax along with interest and filed ST-3 returns, though belatedly. I find from the records that the appellants are not disputing their liability of service tax and have paid the entire amount of service tax along with interest w....

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....n taken under section 73 of the Act or all proceedings under the Finance Act, 1994, including those under sections 76,77 and 78, get concluded. 3. The issue has been examined. The intention of section 73(1A) has already been explained vide para 8(g) of the post budget instructions issued by TRU vide D.O.F. No. 334/4/2006-TRU, dated 28-2-2006, wherein it has been clarified that this sub-section provides for conclusion of adjudication proceedings in respect of person who has voluntarily deposited the service tax. 3.1 The relevant portion of section 73 is reproduced below,- "Provided further that where such person has paid service tax in full together with interest and penalty under sub-section (1A), the proceeding in respect of such ....