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2019 (5) TMI 1962 - AT - Service TaxLevy of penalty u/s 78 of FA - applicability of benefit of subsection (3) of Section 73 ibid - entire service tax liability along with interest in respect of the adjudged demands, have already been paid before adjudication of the matter - bona fide belief - intellectual property rights service - Reverse Charge Mechanism - it is claimed that the issue was was contentious and there was not wilful suppression - HELD THAT:- The observations made in the impugned order regarding non-consideration of payment at the factory towards the service tax liability of head office is not legally sustainable inasmuch as the statutory levy has to be paid into the Central Government Account, irrespective of the fact from which office or establishment of the assessee, such payment has been made. However, it is found that the original authority has not considered payment of such amount by the appellant. Thus, under the circumstances, the matter should go back to the original authority for ascertaining the fact, whether such amount of Rs.26,548/- has already been paid by the appellant. Imposition of penalty under Section 78 ibid - HELD THAT:- The submissions of the appellant that nonpayment of service tax within the stipulated time frame was not owing to the reason of fraud, collusion, wilful misstatement, etc., with the intent to defraud the Government Revenue are agreed upon - the ingredients mentioned in Section 78 ibid are not present in the case, justifying imposition of equal amount of penalty on the appellant - the benefit provided under sub-section (3) of Section 73 ibid should be available to the appellant inasmuch as the disputed amount of service tax along with interest was paid by the appellant much before issuance of the show cause notice and accordingly, proceedings cannot be initiated, especially for imposition of penalty. The impugned order, in so far as it has imposed penalty under Section 78 ibid on the appellant is set aside - the matter is remanded to the original authority for ascertaining the fact whether the disputed amount of Rs.26,548/- has already been paid, as claimed by the appellant and accordingly, decide the issue - appeal disposed off.
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