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2023 (7) TMI 361 - AT - Service TaxNon-payment of Education Cess and SHE Cess - payments were made as soon as the payments were pointed out by the officials - validity of proceedings as per Section 73(3) of Finance Act, 1994 - HELD THAT:- It is not in dispute that the Education Cess and SHE Cess has been paid along with interest by the Appellant immediately on being pointed out by the Audit Officials much before the Show Cause Notice was issued on 08/102015. In terms of Section 73(3) of the Finance Act, in such case, no Show Cause Notice should have been issued. The Hon’ble karnatka High Court in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX VERSUS M/S ADECCO FLEXIONE WORKFORCE SOLUTIONS LTD [2011 (9) TMI 114 - KARNATAKA HIGH COURT], has held Though the law does not say so, authorities working under the law seem to think otherwise and thus they are wasting that valuable time in proceeding against persons who are paying service tax with interest promptly. This Tribunal in the case of M/S. SEN BROTHERS VERSUS COMMISSIONER OF CENTRAL EXCISE, BOLPUR [2013 (12) TMI 433 - CESTAT KOLKATA] has held once the appellant has already discharged Service Tax liability and the interest thereon and no additional liability has been adjudged in the adjudication proceedings, provisions of Section 73(3) will be applicable in this case and there was no necessity of issuing any show cause notice to the appellant. In such cases no penalty is imposable by virtue of Explanation 2 to sub-section (3) of Section 73 of the Finance Act, 1994. Extended period of limitation - Penalty u/s 78 - HELD THAT:- It is seen that inspite of having full knowledge that the Appellant has made the payment of Service Tax along with interest on 12/11/2012, the Department has issued the Show Cause Notice on 08/10/2015 i.e. after about three years from the date of receipt of entire payment. They have invoked the provisions of extended period, which was not at all applicable in this case. Hence, the confirmed penalty under section 78 is required to be set aside, even on this count. Appeal allowed.
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