2019 (1) TMI 1174
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.... that the appellant has made to the Foreign Service providers for receiving various services as that of advertising & marketing, business auxiliary service, commission to travel agent service etc. The Department thereafter served a show cause notice No.429 dated 10.04.2013 proposing the recovery of the said short paid tax alongwith the interest at appropriate rate and the penalty under Section 76 & 78 of the Finance Act, 1994. The proposal was confirmed vide the Order-in-Original No.16 dated 19.01.2017 when the appeal was preferred before Commissioner (Appeals). The Order-in-Appeal No.798 dated 25.07.2018 was passed rejecting the appeal. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Ms. Priyanka Goyel, ld. Advocat....
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....tence falsifying the applicability of Section 73 of sub-section (3). Thus, there is no infirmity in the order. Appeal is prayed to be dismissed. 5. After hearing both the parties, I observe that narrow compass of the adjudication is that of penalty imposed and confirmed by Commissioner (Appeals) on the appellant. The only ground praying for setting aside the same is the applicability of Section 73 (3) of the Finance Act, which reads as follows:- "Sub-Section (3) of Section 73 of the Finance Act, 1994 (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the a....
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....hereon. (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) wilfulmis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax. 6. The bare perusal makes it clear that the word used in the provision is "shall". Thus, the legislature has mandated that where the duty, which has either not been paid or has been short paid, if stands paid, the Department mandatorily has not to serve any show cause notice upon such an assessee. The fact of t....