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2013 (9) TMI 665 - AT - Service TaxWaiver of penalty - Short Payment of Duty – Delayed Payment of Duty - Business Auxiliary Services and Goods Transport Agencies – Penalty u/s 78 - Revenue noticed that the assesse had not discharged their service tax liability on Business Auxiliary Service during Dec'06 to Mar'07 and on services of Goods Transport Agency during the period Jan'05 to Mar'07 – Penalty imposed u/s 78 was challenged by the assesse - Held that:- There was no justifiable reason for invoking provisions of section 80 of Finance Act, 1994 thus the penalty imposed u/s 76 could not be waived – relying upon COMMISSIONER OF SERVICE TAX, BANGALORE Versus GOWRI COMPUTERS (P) LTD. [2011 (9) TMI 808 - CESTAT, BANGALORE]. Contention of the assesse that they should be extended benefit of either section 73(1A) or section 73 (3) could not be accepted - There was element of suppression involved and the benefit of section 73(1A) could have been given only if 25% of duty was paid as penalty - Secondly section 73 (3) deals with recovery of tax not paid - Section 76 deals with penalty for delay in payment of tax - it was not possible to interpret these provisions to meant that an assessee can collect and keep the tax with him and deposit when it comes to the notice of the department and no penal consequence will follow other than interest - the defaults continued even for periods after the point of time the issue was pointed out by audit – Decided against assesse.
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