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2016 (11) TMI 319 - AT - Service TaxInvocation of Section 73(3) and/or 80 of the Finance Act, 1994 - waiver of penalty imposed under Section 78 - service of Commercial Construction Service, Works Contract and Goods Transport Services - payment of tax and interest, and furnishing of all documents before issuance of SCN - whether invocation of section 73 (3) justified? - Held that: - the appellant admittedly recorded the entire transaction of their provision of service in their books of account. The appellant had no intention to evade the service tax which along with interest was discharged before the issuance of show cause notice without any protest. In such circumstances the case of the appellant is covered under Section 73 (3). As per the plain reading of section 73(3), it is clear that if the assessee on his own ascertainment pay the service tax along with interest without protest. In such case no show cause notice should be issued. In the present case the appellant have discharged the service tax along with interest before issuance of show cause notice. It is further noted that the appellant have declared the entire transaction in their books of accounts. Therefore no suppression of fact can be attributed for delayed payment of service tax. Therefore, the appellant’s case is squarely covered by Section 73(3) of the Act, and the appellant was not required to be served with the show cause notice. Consequently, no adjudication is required and penalty could not have been imposed. We, therefore drop the penalty imposed under Section 78 invoking Section 73(3) of the Finance Act, 1994. The payment of Service Tax and interest thereupon made by the appellant is maintained - appeal allowed - decided in favor of appellant.
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