TMI Blog2013 (11) TMI 1408X X X X Extracts X X X X X X X X Extracts X X X X ..... ly provides that notice shall not be issued in respect of amount so paid implying that if any short-fall is noticed, notice can be issued only for recovering such shortfall and not in respect of tax paid by the assessee before issue of SCN - Therefore, order passed by the Tribunal needs correction - So the Show Cause Notice issued and penalty levied are not maintainable in law - Rectification allowed. - ST/514/2011 - Misc. Order No.42511/2013 - Dated:- 18-10-2013 - Shri Mathew John, J. For the Appellant : Shri J. Shankar Raman, Advocate For the Respondent : Shri P. Arul, Superintendent (AR) JUDGEMENT The applicant has filed this application for rectification of mistake as perceived by them in Final Order No. 40046/2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he amounts demanded and also for imposing penalty. The appellant was not contesting the amount of service tax demanded and interest thereon. The appellant was only contesting the penalty of Rs.8,87,392/- imposed under Section 76 of the Finance Act, 1994. 3. It was in this matter that the finding as in para 14 of the order dated 1.3.2013 was given. The finding is to the effect that there was an element of suppression involved and for that reason benefit of Section 73(1A) or 73(3) could not have been availed because penalty was not paid before issue of SCN. 4. The submission of the learned counsel for the applicant today is that the show-cause notice did not allege any suppression on their part. There is no such finding by the lower autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h sides and perused the records. I notice that there is no allegation of suppression in the show-cause notice that was issued. That being the case there cannot be a finding that there was suppression on the part of the appellant. Even in a situation where the facts of the case may suggest so, the finding given at second appellate stage cannot survive for the reason that the appellant was not put on notice by the lower authorities and matter adjudicated. The decision of the Karnataka High Court relied upon by the learned AR is a case where suppression was invoked in the show-cause notice and penalty under Section 78 was imposed by the lower authorities. In this case there is no penalty imposed under Section 78 and the penalty imposed is only ..... X X X X Extracts X X X X X X X X Extracts X X X X
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