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2013 (11) TMI 763 - CESTAT AHMEDABADPenalties under Sec. 76 & 78 - Assessee failed to file regular returns from 01/04/2000 to 31/03/2004 and also did not deposit the service tax payable - But entire Service Tax, along with interest, was paid by the assessee before issue of show-cause-notice - Applicability of amnesty scheme introduced by CBEC as per Chennai Commisonarate-III Trade Notice No. 18/2004-ST dt. 23/09/2004 - Held that:- A plain reading of the above scheme reveals that the same is applicable to those service providers who were not registered and who filed a prescribed registration upto 30.10.2004. However, such non registered unit, whether due to ignorance or for any other reasons, were entitled to a complete waiver of penalties. In the case of the appellant the period involved is also prior to 30/10/2004. However, no declaration has been filed by the appellant before 30/10/2004 as required under the Extraordinary taxpayer friendly scheme (ETFS). Secondly ETFS scheme was initiated by the Central Govt, only for those units which were not registered and not for those units which were already registered and filing returns. There was a delay in payment of service tax liability and statutory provision exist to the effect that service tax due can be paid by an assessee belatedly along with payment of interest as prescribed. The same has been paid by the appellant and thus it cannot be a case of suppression with intention to evade service tax on the part of the appellant. Revenue was also not barred from taking any recovery action when periodical returns were not being filed by the appellants. In view of the above penalty under Sec. 78 of the Finance Act, 1944 is not attracted upon the appellant and is set aside. Appellant did not file the prescribed returns as required under the Service Tax law therefore, penalty under Sec. 76 has been rightly imposed upon the appellant and is upheld - Decided partly in favour of assessee.
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