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2023 (8) TMI 188 - AT - Service TaxLevy of penalty u/s 77 and 78 of FA - Service tax alongwith interest already paid, prior to issuance of SCN - invocation of extended period of limitation under Section 73(3) of the Act - audit on the appellant has not been conducted and no audit objection was raised - HELD THAT:- On perusal of Section 73(3) shows that if a tax is paid along with interest before the issuance of show cause notice then in that case show cause notice shall not be issued and in the present case also, it is found that the contention of the appellant that they had bona-fide belief that they are not liable to pay service tax but when they realised on their own, they immediately paid the service tax along with interest which is admitted in the impugned order itself. In the case of YCH LOGISTICS (INDIA) PVT. LTD. VERSUS C.C.E & C.S.T. -BANGALORE SERVICE TAX- I [2020 (3) TMI 809 - CESTAT BANGALORE], this Tribunal in identical facts has held In the present case, we find that the contention of the appellant that they bona fidely believed that they are not liable to pay service tax but when the audit party raised the objection that they are liable to pay service tax, then they immediately paid the service tax along with interest which is admitted in the impugned order, is justified. It is found that the case law relied upon by the Ld. DR is not applicable in the facts and circumstances of the present case because in that decisions the assessee has challenged the levibility of service tax on outdoor catering services which was adjudicated by the authorities below whereas in this case the appellant suo-moto without being pointed by the department paid the service tax along with interest much before the issuance of show cause notice hence the issue of imposition of penalty is covered by the various decisions cited in favour of the appellant. The appellants are not liable to pay penalty under Section 77 & 78 - Appeal allowed.
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