TaxTMI 
TaxTMI 
2020 (2) TMI 304
X X X X Extracts X X X X
X X X X Extracts X X X X
....5% amounting to Rs. 8,84,648/- by the original impugned order dated 10.08.2017. The relevant portions of the impugned order of the learned Tribunal dated 10.08.2017 are quoted below for ready reference: "11.Similarly, the appellant's claim to reduce the penalty to 25% in terms of the proviso to Section 78 can also not to be appreciated in as much as, the benefit of reduced penalty can be extended only if the entire service tax along with interest and along with 25% penalty is deposited within 30 days of the passing of the order of determination of service tax. Learned advocate fairly agreed that such penalty to the extent of 25% has not been deposited by them. In such a scenario, benefit cannot be extended. 12.The original adjudicat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment as there is failure to file the ST 3 returns as well. In this regard it is seen that the ST 3 return for the quarter April to June 2012 was filed on 26.03.2013 (due dated 25.11.12); the ST 3 return for the quarter July to September was filed on 26.03.2013 (due date 15.4.13) and the ST 3 return for the Half year October 2012 to March 2013 was filed on 1.11.2013 (due date 10.09.13). Therefore the arguments of the appellant that the failure to pay appropriate service tax for the period April 2012 to December 2012 has to be considered as default in payment cannot be accepted as the said amounts have not been declared in the relevant ST 3 returns." 3.He therefore submitted that as per Section 73(3) of the Finance Act, 1994 [in short "the A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ax, 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 respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid. PROVIDED that the [Central Excise Officer] may determine the amount of short payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the [Centr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed or short-paid, or erroneously refunded, by reason of fraud or collusion or willful mis-statement or suppression of facts or contravention of any of the provisions of this Chapter or of the rules made thereunder with the intent to evade payment of service tax, the person who has been served notice under the proviso to sub-section (1) of section 73 shall, in addition to the service tax and interest specified in the notice, be also liable to pay a penalty which shall be equal to hundred per cent. of the amount of such service tax:" 8.Section 78 of the Act applies only when there is a failure on the part of the Assessee to pay service tax for reasons of fraud etc., as enumerated in Section 73(4) of the Act quoted above. The penalty under Se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Act viz., fraud, collusion, suppression of facts, wilful mis-statement. 10.The Audit Objection raised by the Audit Officer is also ascertainment of tax by a Central Excise Officer within the meaning of Section 73(3) of the Act and there is no dispute that an Auditor of the Department is also a Central Excise Officer. Therefore, payment of the service tax with interest by the Assessee in the year 2013 itself, of course, not on his own or suo motu but on the basis of the Audit Objection viz., on the basis of the determination by an Auditor of the Department would not take out the case of the Assessee from the ambit and scope of Section 73(3) of the Act. Therefore, in our opinion, the question of imposition of penalty under Section 78 of th....