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2019 (1) TMI 1175 - AT - Service TaxPenalty - short payment of service tax - entire deficiency was made good alongwith the interest much prior the issuance of the show cause notice - applicability of sub-section (3) of Section 73 of the Finance Act - interpretation of statute - Held that:- The bare perusal makes it clear that the word used in Section 73 (3) of the Finance Act is “shall”. Thus, the legislature has mandated that where the duty, which has either not been paid or has been short paid, if stands paid, the Department mandatorily has not to serve any show cause notice upon such an assessee. The fact of the present case that the entire duty as has been proposed to be recovered from the impugned show cause notice stands deposited vide challan No. 00055 dated 18.03.2003. The interest has also been deposited vide challan No. 00003 dated 19.03.2003. The fact has very much been acknowledged in the show cause notice itself. the entire payment alongwith interest was made much prior the show cause notice dated 05.01.2017. There is no reason to deny the benefit of sub section (3) of Section 73 of the Act to the appellant. The intimation was also very much to the Department vide the letter on record dated 17.10.2015. Since the facts were to the notice of the Department, the Department was liable to issue show cause notice, during the normal period of one year. The Department is therefore opine to have wrongly invoked the extended period. Section 73 to sub-section (3) is held to be applicable to the given facts and circumstances - no penalty imposable - appeal allowed - decided in favor of appellant.
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