TaxTMI 
TaxTMI 
2022 (12) TMI 1191
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....ction 73(2) of the Finance Act, 1994. II) I order appropriation of amount of Rs.41,29,290/- (Rupees Forty One Lakhs Twenty Nine Thousand Two Hundred and Ninety Only) from the amount of Rs.47,80,965/- (Rupees Forty Seven Lakhs Eighty Thousand Nine Hundred Sixty Five Only) paid by the Noticee against the demand confirmed at (I) above. III) I confirm the demand of interest of Rs.6,97,7471- (Rupees Six Lakhs Ninety Seven Thousand Seven hundred and Forty Seven Only) Only) under Section 75 of the Finance Act, 1994. IV) I appropriate the amount of Rs.6,97,7471- (Rupees Six Lakhs Ninety Seven Thousand Seven Hundred and Forty Seven Only) from the amount of Rs.6,97,747/- (Rupees Six Lakhs Seven Thousand Seven Hundred and Forty Seven Only) paid by the Notices against the Interest recoverable from them as mentioned at (III) above. However it seen that the Interest amount of Rs. 1,97,994/- (Rupees One Lakh Ninety Seven Thousand Nine Hundred and Ninety Four Only) paid by the Noticee vide Challan No.31924 dated 31.03.2012 is not reflected in the SCN dated 27.09.2012 towards IPR-Royalty. V) I hereby impose the on the Noticee under Section 76 of Finance Act, 1994....
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....use notice dated 27.09.2012 was issued to the appellant asking them to show cause as to why:- "(i) the differential Service Tax of Rs.41,29,290/- (Rupees Forty One Lakhs Twenty Nine Thousand Two Hundred Ninety only) short paid during the period F.Y 2011-12, (inclusive of Ed, Cess and SHS Ed Cess), should not be demanded and recovered from them, under Section- 73(1) of Chapter- V. of the Finance Act, 1994: (ii) the service tax of Rs 41,29,290/-, paid, should not be adjusted and appropriated towards the Service Tax short paid, from the amounts of Rs.47.80.965/-deposited vide Challan No. 624 dated 11/07/12; (iii) interest of Rs.6,97.747/ at appropriate rate on the Service Tax of Rs.41.29.290/-short paid should not be demanded and recovered from them, under the provisions of Section-75 of Chapter-V of the Finance Act, 1994; (iv) the interest of Rs.5,32.533/-, deposited vide,, Challan No.624 dated 11/07/12, Challan No.403 dated 24/07/12, and Challan No.352 dated 25/7/12, should not be adjusted and appropriated towards the recoverable interest of Rs.6,97,7471-; (v) Penalties should not be imposed upon them under the provisions of Section-76 of....
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....ability was detected, which otherwise would have gone undetected which takes the colour of malafide intent and not a voluntary payment. Merely stating that the situation being revenue neutral, do not justify non-payment of Service Tax liability. I therefore do not accept the contention of the Appellants that no penalty can be imposed if tax liability is paid before the issue of Show Cause Notice voluntarily, and there was no made it o their part to evade as it has been held by Hon'ble High Court of Karnataka in the case of Commissioner of Customs, Mangalore versus Jindal Vijaynagar Steel reported on [2017(346)ELT 378 (Kar) that payment of differential duty by assessee prior issuance of Show Cause Notice would not alter the liability of mandatory statutory penalty. The stated decision of Hon'ble Karnataka High Court has been confined by Hon'ble Supreme Court reported on 2017(346) ELT A-138(BC)." 4.3 Undisputedly in the present case appellant has discharged the entire service tax liability prior to the issuance of any show cause notice and the appellant has in their appeal at point H contended as follows: "H. The Appellant had paid service tax of Rs.3,34,09,945/- ....
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.... are liable to be set aside on this ground only. 4.6 Learned AR during the argument referred to Section 76 of the Finance Act, 1994 as it existed at the relevant time:- "76. Penalty for failure to pay service tax Any person, liable to pay service tax in accordance with the provisions of section 68 or the rules made under this Chapter, who fails to pay such tax, shall pay, in addition to such tax and the interest on that tax amount in accordance with the provisions of section 75, a penalty which shall not be less than two hundred rupees for every day during which such failure continues or at the rate of two per cent of such tax, per month, whichever is higher, starting with the first day after the due date till the date of actual payment of the outstanding amount of service tax: Provided that the total amount of the penalty payable in terms of this section shall not exceed the service tax payable." He submitted that as the Commissioner (Appeals) has come to a finding that there was no intention to evade payment of duty, Section 73(3) was not applicable and demand has been rightly made and penalty under Section 76 has been rightly imposed. 4.7 I....