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2019 (1) TMI 1174 - AT - Service TaxPenalty - Short payment of Service tax - foreign remittances made to the Foreign Service providers for receiving various services as that of advertising & marketing, business auxiliary service, commission to travel agent service etc. - entire alleged duty alongwith the interest has already been paid that too prior to the issuance of the SCN - applicability of Section 73 (3) of the Finance Act - scope of SCN - Held that:- The Department has made emphasis on sub-section (4) thereof, but the perusal of show cause notice makes it clear that Section 73 to sub-section (4) has not been invoked. It has now been settled law that the Department is not allowed to go beyond the show cause notice, otherwise also section 73 sub-section (4) includes the cases where the short payment or non-payment by the reason of fraud, collusion, willful misstatement or suppression of facts - Mere non-payment or short payment for a particular period even till the time audit is not sufficient to prove the grave allegations as are contained in sub-section (4). It is rather the onus of Department to come forward to give some evidence of positive act on part of the appellant proving the appellants intend to evade the tax duty. Sub-section (4) of Section 73 is held not applicable to the present case - appeal allowed - decided in favor of appellant.
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