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2022 (2) TMI 1076 - AT - Service TaxSeeking deletion of penalty imposed under section 78 - entire Service Tax and interest paid before issuance of Show Cause Notice - conclusion of section 73(3) of Finance Act, 1994 - invocation of extended period of limitation - suppression of facts or not - HELD THAT:- From section 73(3) of FA, it is clear that assessee is required to inform the department about their intention to avail the benefit of section 73(3) in writing - In the present case, the appellant has not informed the department that they wish to avail the benefit of section 73(3). Moreover, the demand was raised for the period 2011-12 to 2014-15 by invoking the extended period. This itself shows that the appellant has suppressed the fact. It is also observed that the appellant have discharged the Service Tax only when the issue was raised by the audit party at the end of service recipient M/s Balas Industry. The audit report was issued on 16/09/2014 and on this basis only the appellant has paid the amount on 14/10/2016 and 15/10/2016. The appellant has neither taken any registration nor paid the Service Tax for the last 5 years. Therefore, there is a clear suppression of fact on the part of the appellant. Sub-section (4) of the section 73 clearly provides that where nonpayment of Service Tax is due to suppression of fact, misstatement, fraud, collision, etc the case cannot be concluded under section 73(3) - Therefore, in the present case, the appellant have not complied with the provision of section 73(3) and suppression of fact is clearly established against the appellant. Hence, they are not eligible to avail benefit under section 73(3). Accordingly, the Revenue has rightly issued the Show Cause Notice and the Adjudicating Authority has correctly imposed the penalty under section 78. Appeal is dismissed.
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