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2013 (12) TMI 40 - AT - Service TaxInterest u/s 75 - Penalty u/s 76, 77 and 78 - Service tax liability - Security services - DGCEI, Vadodara initiated investigation against assessee - After the commencement of the investigation, the appellant firm paid a sum towards the Service Tax liability - Interest on delayed payment of Service Tax - Assessee contends that there as arithmetic mistake in order - Adjudicating authority directed the appellant to furnish detailed calculation sheets for the verification of alleged arithmetical mistakes in the computation of Service Tax demand - Held that:- Neither in the appeal memorandum nor in other documents submitted by the appellant along with the appeal memorandum, any calculation-sheet has been furnished - The impugned order was passed on 16.3.2007 and more than six years have lapsed since then and inspite of such a long period, the appellant has not shown or produced any evidence in support of their claim that there are errors in computation of Service Tax demand. Therefore, the contention of the appellant remains a mere allegation without any supporting evidence. Section 73 provides for assessment of tax and thereafter, payment of tax. Demand under Section 73A does not require any assessment of tax at all. It deals with payment of tax to the exchequer if any amount has been collected in excess of the Service Tax assessed or determined. Even in a case where service is not available. If any amount has been collected, which is not required to be so collected, the Section provides for crediting of the amounts so collected to the exchequer. Thus, Section 73 and 73A deal with altogether different situations. Penalty under Section 76 is imposed for default in payment of tax and, no mens rea is required to be proved for imposing such penalty. For mere default and delay in payment of tax, the liability to penalty arises. As regards the penalty under Section 78, the same is attracted when Service Tax is demanded and confirmed invoking the extended period of time and short-levy or short-payment or non-levy or non-payment or erroneous refund is on account of fraud or collusion or willful mis-statement and suppression of facts and contravention of any of the provisions to chapter V of the Finance Act, 1994 or to the rules made thereunder, with an intent to evade payment of Service Tax. In the present case, the appellant had suppressed the value of the taxable service received by them in their ST-3 Returns and in respect of the year 2004-05 and 2005-06, the appellant did not file any return at all. It has also been admitted in the statements recorded under Section 14 of the Central Excise Act by the Managing Director of the appellant firm that they mis-declared the value so as to evade payment of Service Tax - Decided against assessee.
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