2019 (1) TMI 1175

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....as not been discharged by the appellant for the period April 2014 to December, 2014 nor the ST-3 Return has been filed. Proposing the recovery of said short payment alongwith the interest at appropriate rate and proportionate penalties that show cause notice No.1561 dated 05.01.2017 was served upon the appellant. The joint Commissioner vide Order in Original No.12 dated 15.02.2018 has confirmed the said proposal. An appeal was preferred before the Commissioner (Appeals) who vide Order-in-Appeal No.53 dated 26.06.2018 has confirmed the findings of the Original Adjudicating Authority. Being aggrieved, the appellant is before this Tribunal. 2. I have heard Shri Pranav Mittal, ld. Advocate for the appellant and Ms. Tamanna Alam, ld. D.R. for....

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....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:- Section 73 (3) of the Finance Act, which reads as follows:- (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 amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respe....

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....ion; 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 the present case that the entire duty as has been proposed to be recovered from the impugned show cause notice stands deposited vide challan No. 00055 dated 18.03.2003. The interest has also been deposited vide challan No. 000....

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....5/- 6,08,185/-   28/01/2015 06/10/2014 114 34,192/- 3,41,061/- 6,821/- 3,411/- 3,51,293/-   05/01/2015 06/10/2014 91 15,765/- TOTAL 17,66,004/- 35,320/- 17,660/- 21,70,27/-           Oct - Dec 2014 4,84,319/- 9,686/- 4,843/- 4,98,848/- 2780 18/03/2015 06/01/2015 71 17,467/- 1,81,165/- 3,623/- 1,812/- 1,86,600/- 2042 14/05/2015 06/01/2015 128 11,779/- 1,45,306/- 2,906/- 1,453/- 1,49,665/- 260 20/05/2015 06/01/2015 134 9,890/- 1,73,124/- 3,462/- 1,731/- 1,78,317/- 5264 03/06/2015 06/01/2015 148 13,015/- 1,91,597/- 3,832....