TMI Blog2010 (1) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings under Section 73(3) are concluded, all the proceedings including those under Section 76, 77 & 78 also shall be concluded. – pre deposit waived. - E/916/2009 - 43/2010-SM(BR)(PB), - Dated:- 18-1-2010 - Shri Rakesh Kumar, Member (T) REPRESENTED BY: Shri Jitender Mohan, Consultant, for the Appellant. Shri R.K. Saini, DR, for the Respondent. [Order]. - This is an application for waiver of requirement of pre-deposit of penalty of Its. 38,679/- imposed under Section 76 of Finance Act, 1994 and upheld by the Commissioner (Appeals) vide impugned Order-in-Appeal No. 24/ST/CHD-II/2009 dated 7-9-2009. 2. The appellant are registered with the department as provider of Business Auxiliary Services. Registration had been ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , learned Consultant for the appellant, pleaded that due to misunderstanding, the appellant had not paid the service tax for the period from July, 2005 to March, 2006, which was paid by them voluntarily on 31-3-2006 and 254-2006 and at that time returns were also filed; that this case is covered by sub-section (3) of Section 73 which provides that where any service tax, has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -10-2007 are not applicable to the facts of this case as this is a case of default in payment of service tax by the due date. 6. I have carefully considered the submissions from both sides and perused the records. There is no dispute about the fact that the appellant voluntarily paid service tax on 31-3-2006 and 25-4-2006 and the notice for imposition of penalty was issued much later on 28-11-2007. There is also no allegation of any fraud, collusion and wilful suppression of facts with intention to evade payment of service tax. Therefore, prima facie, this case appears to be covered by the provisions of Sub-section (3) of Section 73 of the Finance Act, 1994, read with Board's Circular No. 137/167/2006-CX 4, dated 3-10-2007. This Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X
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