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2015 (12) TMI 219 - AT - Service TaxWaiver of pre deposit - levy of penalty - they were collecting the service tax from their customers but instead of depositing the same with the Revenue, were retaining it with them. - Mining and Site Formation Services - Recovery u/s Section 73 - Held that:- Appellant is not disputing that they were collecting the service tax from their customers but instead of depositing the same with the Revenue, were retaining it with them. We really fail to appreciate the appellant s contention that the amount was being retained on account of financial difficulties to deposit the same. The service tax was not required to be deposited from the appellant s own pocket but the amount collected by him was to be only deposited with the Revenue, in which case there can be no question of any financial difficulty. As rightly submitted by the learned DR, an assessee, when directed by the Revenue, has no choice but to deposit the amounts in question. As such the deposit of the same before the issuance of the show-cause notice along with deposit of the interest, at the intervention of the department, shall not get covered by the provisions of sub-section (3) of Section 73. Sub-section (4) of the said Section clearly mandates that the provision of sub-section (3) shall not be applicable in case there is a malafide on the part of the assessee. - it is not a fit case for dispensing with the condition of pre-deposit of the entire penalty amount - Partial stay granted.
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