TMI Blog2012 (7) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Commissioner (Appeals). Revenue's appeal is for seeking imposition of penalty on the respondent under Section 76 78 of the Finance Act, 1994. In this appeal by the Revenue, the respondent have filed cross objection no.ST/CO/85/2011-SM. Since there was 5 days delay in filing of the cross objection, an application for condonation of delay has also been filed by the respondent. 2. The respondent are a sub-broker. They had obtained Service Tax Registration in Jan. 2005 and for sometime, filed ST-3 Returns. It appears that subsequently, they stopped paying service tax and filing service tax returns, till inquiry in respect of them was initiated in 2008 and their financial records were examined by the department, in course of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration in January, 2005, they were neither paying service tax nor were filing any return, that non-payment of service tax was detected only in 2008, that after detection, the appellant paid the entire amount of service tax along with interest before issuance of show cause notice but this will not save them from the penal provisions of Section 76 and 78 inasmuch as the service tax had not been paid by them by the due date and by not filing the returns, the respondent suppressed the relevant information from the department, that the Commissioner (Appeals)'s order is not correct, as while the department in the appeal before the Commissioner (Appeals) has asked for imposition of penalty on the respondent under Section 76 and 78, he had p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reminders, returns were not being filed and inquiry in this case was conducted by the department in 2008, it was learnt that the respondent in spite of service tax registration were not paying service tax since April, 2006 due to financial difficulties though the tax till March, 2006 had been paid. It is not disputed that immediately after non-payment of service tax was pointed out, the same was paid along with interest. The lower authorities have treated this as a case covered under Section 73 (3) of the Finance Act, 1994 under which where any service tax has not been levied or has been short-levied or short paid or erroneously refunded, the persons chargeable with the service tax, or the person to whom such tax refund has erroneously be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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