2026 (3) TMI 409

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....by the Revenue under Section 35G of the Central Excise Act, 1944 (for short, "the Act") is directed against the order dated 17.03.2025 passed in Service Tax Appeal No. 2309/2011 by the Customs, Excise and Service Tax Appellate Tribunal, Bangalore (for short, "the Tribunal"). 3. The following substantial questions of law are raised for consideration of this Court. "(i) In the facts and circumstances of the case, whether the order of the Hon'ble Tribunal (CESTAT) in setting aside the demands with interest and penalties without due consideration of relevant material facts and reasons mentioned in the order in original is perverse, illegal and liable to be set aside? (ii) Whether the Hon'ble Tribunal (CESTAT), Banga....

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....rder-in-Original dated 06.05.2011 holding that penalty under Section 78 of the Finance Act, 1994 could not be levied, as the noticee had made payment of tax along with interest prior to the issuance of the show cause notice, thereby attracting the protection under Section 73(3) of the Act. 4.3 Aggrieved by the said order, the Revenue preferred an appeal before the Tribunal. The Tribunal, by the impugned order, following the judgment of the High Court of Andhra Pradesh in Commissioner of Central Excise, Visakhapatnam v. Tirupathi Fuels Pvt. Ltd., reported in 2017 (7) G.S.T.L. 142 (A.P.), dismissed the Revenue's appeal. 5. Sri M. Unnikrishnan, learned Standing Counsel appearing for the appellant-Revenue, submits that the tax and interes....

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....8. Section 73 of the Act provides for recovery of service tax not levied or paid, short-levied or short-paid, or erroneously refunded. Sub-section (1) of Section 73 stipulates that a notice shall be served on the person chargeable with service tax within a period of thirty months from the relevant date. 8.1 However, the proviso to sub-section (1) extends the period of limitation to five years where the service tax has not been levied or paid, or has been short-levied or short-paid, or erroneously refunded, by reason of: a) fraud; b) collusion; c) wilful misstatement; d) suppression of facts; or e) contravention of any of the provisions of Chapter V of the Act or the rules made thereunder, with....

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....scribed under sub-section (1) of Section 73 pertains to the service of notice. Once a show cause notice is issued de hors the protection available under sub-section (3), the invocation of sub-section (4) so as to exclude the benefit under sub-section (3) must be specifically pleaded and substantiated. The existence of any of the circumstances enumerated in clauses (a) to (e) is required to be clearly demonstrated. 8.5 Invocation of sub-section (4), which results both in the extension of limitation and in the denial of the statutory protection under sub-section (3), warrants strict compliance with the statutory requirements. 8.6 During the course of hearing, we called upon the learned counsel for the Revenue to demonstrate the existenc....