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TMI Blog2010 (9) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... tax along with interest on subsequent dates, the appellant was found to have paid interest less to the extent of Rs.2,221/-. Thereafter, the show cause notice was issued to the appellant on 22.04.08, proposing to demand service tax and interest and also imposition of penalty. Appellants paid Rs.4,141/- on 14.5.08, comprising of Rs.2,221/- towards interest and Rs.1,920/- towards service tax. Rs.1,920/- was paid because the appellant could not locate reversal entry of Cenvat Credit, which according to them, they had made in their books, but could not give details at that time to the lower authorities. Lower Authorities have held that the penalty under Section 76 is imposable since the service tax and interest was not paid within time. 2. Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer before service of notice on him under sub-section (1) in respect of such service tax, and inform the Central Excise officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid; Provided that the Central Excise Officer may determine the amount of short payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer of Central Excise shall proceed to recover such amount in the manner specified in this Section, and the period of one year referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. Explanat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant s action in non-payment of the same to the Government, warrants penalty. 6. At this stage, the learned Chartered Accountant drew my attention to the provisions of Section 76 and submitted that in Exhibit E , he had submitted calculation of penalty and according to his calculation, maximum penalty imposable comes to Rs.55,220/-, whereas the original adjudicating authority has imposed penalty of Rs.3,92,729/-. The appellants had claimed eligibility under Section 73(3) of Finance Act, 1994 and the calculation of penalty payable was not made as an alternative submission before lower authority. Under these circumstances, the correctness of the penalty calculated is required to be re-considered. 7. In view of the above discussion, while ..... X X X X Extracts X X X X X X X X Extracts X X X X
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