TaxTMI 
TaxTMI 
TaxTMI 
2023 (3) TMI 442
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....ment of Service Tax on various occasions. It was also noticed that they had not paid the Service Tax collected from the customers for the period from August 2010 to October 2010 till the visit of the audit officers on 24.11.2010. On being pointed out, the appellant paid the amount of Service Tax along with interest. It was also noted that the appellant filed ST-3 returns for the half year ending September 2010 and March 2011 on 21.02.2011 and 20.07.2011 and there was late filing of returns for other periods. 3. Show Cause Notice No. 359/2011 dated 26.09.2011 was issued, proposing to demand the amount of Rs.50,11,790/- for the period from August 2010 to October 2010 along with interest and for imposing penalties. After due process of law, the Original Authority, vide order impugned herein, confirmed the above demand along with interest and appropriated the amount with interest already paid by the appellant. A penalty of Rs.5,000/- was imposed under Section 77 of the Finance Act, 1994 for the delay in filing periodical ST-3 returns. Further, a penalty equal to the amount of Service Tax confirmed was imposed under Section 78 of the Act. The appellant was given an option to pay reduce....
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....along with interest has been paid by the assessee. She argued that the intention of sub-section (3) of Section 73 is to conclude the proceedings and to avoid unnecessary hardships to an assessee when the tax and interest has been paid. 4.4 The Learned Counsel for the appellant relied upon the decision in the case of M/s. Vista Infotech v. Commissioner of Service Tax, Bangalore [2010 (17) S.T.R. 343 (Tribunal - Bangalore)] and the decision of this Bench of the Tribunal in the case of M/s. Dusters Total Solutions Services Pvt. Ltd. v. Commissioner of Service Tax, Chennai [Final Order No. 41943 of 2018 dated 06.07.2018 - CESTAT, Chennai] 4.5 She prayed that the penalties imposed may be set aside. 5.1 Smt. Sridevi Taritla, Learned Authorized Representative, appeared and argued for the Department. She contended that the appellant had paid the Service Tax along with interest only after the inspection by the audit party; they have been making delayed payment of Service Tax and also delay in filing returns, habitually. That the non-payment of Service Tax would never have come to light if the verification had not been done by the audit party. She therefore argued that the penalties impos....
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....hat there is no dispute that the appellant had been discharging the service tax liability on the services rendered by him during the period from January 2004 to December 2006. During the relevant period i.e. from January 2007 to June 2007, the appellant had failed to discharge the service tax though he had collected the same from the customers. The appellant's representative had explained in his statement that the delay in deposit of service tax was due to the financial crunch which arose on account of non-release of payment from one of their major clients, but discharged the tax liability along with interest thereon on 5-7-2007 and 19-7-2007. We find that once an assessee accepts the non-payment of service tax liability and pays the dues along with interest, then provisions of Section 73(3) of the Act get attracted. We find that the C.B.E & C. Circular dated 3-10-2007 had clarified as under : - "Subject: Issuance of SCNs for levy of penalty in the cases where service tax is paid suo motu by the assessee - Reg. Section 73(1A) of the Finance Act, 1994 provides for conclusion of adjudication proceedings in the cases of willful suppression/fraud/collusion if the taxpayer prays ser....
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....t case, the original authority has given a reasoning for waiver of penalty in exercise of his powers under Section 80 of the Finance Act, 1994. There was actually no mala fide and intention to evade payment of service tax. Once the lapse was pointed out, the appellants discharged the service tax liability along with interest. This fact has been taken into account by the lower authority. Moreover, even Section 73(3) provides waiver of show cause notice when the assessee pays the service tax liability immediately after it is pointed out. These situations had been examined by this tribunal in the case of M/s. Majestic Mobikes Pvt. Ltd. & Ors. [Final Order No. 652 to 672/2008 dated 30th May 2008] [2008 (11) S.T.R. 609 (Tribunal)] and the tribunal had given a finding that where the original authority exercised his powers under Section 80 of the Finance Act, after recording proper reasons, it cannot be reopened to enhance the penalty by the Commissioner in the Order-in-Revision. The present situation in the appeal is clearly covered by aforesaid decision. In view of this, we are of the view that the impugned Order-in-Revision has no merit. We set aside the same and restore the order of t....