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2011 (9) TMI 808 - AT - Service TaxPayment of service tax before issuance of SCN - Whether the lower appellate authority is right in having set aside the penalties imposed on the assessee by the original authority under Sections 76 and 78 of the Finance Act, 1994 - held that:- As per Section 73(3), there shall be no show-cause notice under sub-section (1) of Section 73 in respect of the Service Tax already paid by the party. There is no bar to issuance of a show-cause notice for imposing a penalty. The Board’s clarification on the point, therefore, does not disclose the correct legal position. Default of payment of Service Tax from 27-9-2004 to 8-3-2004 is an admitted fact. The Service Tax for that period was paid only in August 2005. Such default in payment of Service Tax would per se invite Section 76 as rightly found by the original authority. Indeed, nobody has argued before me that Section 76 is not applicable to cases involving default of payment of Service Tax. Therefore the decision of the lower appellate authority in relation to Section 76 of the Finance Act, 1994 cannot be accepted. - Penalty u/s 76 restored.
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