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2023 (9) TMI 1091 - CESTAT KOLKATAWaiver of penalty imposed u/s 77 and 78 of FA - entire service tax along with interest was paid before adjudication of the case - Business Auxiliary Service (BAS) - adjustment of excess payment against the interest liability payable by the appellant - HELD THAT:- It is a fact on record that the Appellant has obtained service tax registration but did not file ST-3 returns in time. Later, after intervention of the officers of SIV unit and verification of their records on 23.02.2006, the Appellant has paid the Service Tax and Education Cess amounting to Rs.15,07,204/- on various date in 2007 and 2009. The available records also indicate that the Appellant have received commission amounting to Rs.9,69,558/- on 22.05.2003, which was not liable to Service Tax in as Business Auxiliary Service was introduced only w.e.f 01.07.2003 - Even though they paid service tax later, there was a delay in payment of service tax. Interest is liable to be paid for the delayed payment of service tax. Accordingly, the adjudicating authority has appropriated the excess paid amount against the interest liability. Thus, there is no infirmity in the impugned order adjusting the excess payment against the interest liability payable by the appellant. Imposition of penalties under Sections 77 and 78 of the Finance Act, 1994 - HELD THAT:- Regarding penalty imposed under Section 78 of the Finance Act, 1994, there were some confusion prevailed during the relevant period on the liability of payment of service tax as a ‘Commission Agent’. However, the Appellant agreed their liability and paid most of the service tax before issue of the Notice. In fact, they have paid excess service tax than the actual liability confirmed in the impugned order. This has been recorded in the order-in-original by the adjudicating authority - There is no other evidence brought on record to establish that the Appellant has intentionally evaded payment of service tax. Thus, there was no suppression of fact with an intention to evade payment of tax, established in this case. Since the Appellant has already paid the entire service tax payable and the interest liability has also been adjusted from the excess service tax paid, it is a fit case for invoking section 80 of the Finance Act, 1994, to waive the penalties imposed under section 77 and 78 of the Finance Act, 1994. Accordingly, the penalties imposed under section 77 and 78 of the Finance Act, 1994 set aside. The penalties imposed in the impugned order is set aside and the confirmation of service tax and adjustment of interest payable from the excess service tax paid upheld. The Appeal filed by the Appellant is disposed.
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