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2024 (2) TMI 969 - AT - Service TaxLevy of penalty under Section 78 when the service tax was paid along with interest before the issuance of show-cause notice - suppression of facts or not - Invocation of Extended period of limitation - HELD THAT:- Except for stating that the show-cause notice has been issued only after conduct of audit and that the appellants have suppressed the material facts, no evidence has been put forth in the show-cause notice or in the impugned order to show that there has been a positive act of suppression on the part of the appellants to evade payment of duty. It is found that Tribunal has been consistent in holding that extended period cannot be invoked unless a positive act on the part of the assessee is evidenced showing the intent to evade payment of duty. It is also found that Tribunal has been taking a consistent view that a mere non-payment of service tax and non-filing of Returns would not be a sufficient reason to extend the period of limitation. Hon’ble Karnataka 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] held that The assessee has paid both the service tax and interest for delayed payments before issue of show cause notice under the Act. Sub-Sec.(3) of Sec. 73 of the Finance Act, 1994 categorically states, after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under Sub-Sec.(1) in respect of the amount so paid. The impugned order is not sustainable under law and is liable to be set aside - appeal allowed.
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