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2021 (4) TMI 389 - AT - Service TaxLevy of penalty - extended period of limitation - non/short payment of service tax or not - Revenue has submitted that the non payment of service tax in is instalments/ parts and also conduct of the appellant during the investigation proceedings is impressed upon to be highly non co-operative - HELD THAT:- It is observed that the demand as raised by the Department against the appellant amounting to ₹ 40,79,178/-, the entire amount alongwith the interest of ₹ 3,08,328/- stands paid by the appellant over a period of four months starting from 21.01.2015 i.e. from the date even prior to the search was conducted in the appellant’s premises and the entire aforesaid amount stand paid till May, 2015 i.e. much prior before the issuance of the impugned show cause notice dated 27.09.2016 as stands clear from the table in the show cause notice as well as reproduced in the order-in-original. Even an amount of ₹ 59,900/- for delayed filing of return has been made. It is apparent that the show cause notice has been issued after a period of almost 1½ years from the date of the payment of entire demand. In the present case, where the entire payment has been paid even prior the order of assessment is being communicated to the appellant, the decision of Hon’ble Apex Court in M/s Lark Chemicals Pvt. Limited [2016 (5) TMI 190 - SC ORDER] is not applicable to the present case. Penalty - suppression of facts or not - intent to evade or not - HELD THAT:- Reliance placed on the decision in M/S RADHE RESIDENCY VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, SURAT [2015 (7) TMI 716 - CESTAT AHMEDABAD], wherein it has been held that when the service tax stands paid alongwith interest after being pointed out but before the issuance of the show cause notice, the penalty under Section 78 of Finance Act, 1994 is not imposable - the appellant did not discharge his liability at the appropriate time as was otherwise required by the law and also fail to inform the issue of financial crunch as mentioned in the impugned appeal to the notice of the Department. The possibility of intentional suppression as is alleged against him cannot be ruled out. There are no infirmity in the order where the demand of service tax, though it stands already paid, is hereby confirmed - However, the order with respect to imposition of penalty is hereby set aside - appeal allowed in part.
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