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2014 (8) TMI 55 - CESTAT BANGALOREWaiver of penalty u/s 73(3) where service tax with interest deposited beofore issuance of Show Cause Notice - Availment of CENVAT Credit twice - Penalty u/s 78 - Held that:- once a person is in default and if he makes the payment of service tax and interest and subsequently the department finds that such payment had arisen because of miss-declaration or suppression, no action can be taken even if there is a deliberate intention to evade tax. The provisions of sub-section 4 is to ensure that just because someone pays the tax and interest, he does not escape from other liabilities which arise in the case of evasion of tax who have not followed the law. - once the amount is paid with interest, show-cause notice could not have been issued for imposition of penalty. In any case for imposition of penalty there is no specific time limit laid down in the law. Another fact that has to be taken into account is the provision in the law that when there is suppression of facts or misdeclaration etc. where extended period can be invoked, an assessee could pay service tax plus interest and 25% of the service tax towards penalty before issue of show-cause notice. This is an alternative which is provided in the law itself to allow assessees to correct the mistakes/omissions and escape penalty of 100% under Section 78 by making payment with interest and 25% of the service tax with interest before the issue of show-cause notice. That being the position if the issue like the one before us is allowed and if the submission is accepted, we would be rendering this provision which provides for payment of 25% of service tax towards penalty otiose. - Decided against assessee.
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