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TMI Blog2014 (1) TMI 1557X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the appellant were audited on 12.09.07 and 5.10.07. The department pointed out that the appellant was not paying tax promptly and was also not paying interest on such delayed payment of service tax. The appellants paid the outstanding amounts and discharged the entire liability of Rs. 1,57,18,055/- of service tax for the period 01.04.06 to 30.09.07 and also paid interest of Rs. 8,41,810/- before issue of show cause notice in the matter. Later, show cause notice was issued on 05.02.2008 for demanding the service tax not paid in time and for appropriating the service tax already paid by them towards such liability along with interest as applicable and also proposing imposition of penalty Section 76 of the Finance Act, 1994. On adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount was paid later. But he submits that the appellant will pay the short paid amount if it has not yet been paid. The proviso to Section 73(3), states that when short paid tax is paid under provision of the 73(3) and if the payment made is found short, the Central Excise Officer may determine the short payment of service tax which has not been paid under 73(3) and he can proceed to recover only the short paid amount after considering the payment made under 73(3). Therefore, he submits that the show cause notice issued by the department for recovery of the entire amount including the amount already paid is not maintainable in terms of express provisions of 73(3). He relies on the decision of the Karnataka High Court in CCE, ST, (LTU), Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther submits that the appellant had collected service tax amount but not deposited and hence there is a clear suppression on the part of the appellant in disclosing the value of taxable service rendered and hence no leniency should be shown to the appellant. He further relied on the following case laws:- 1. CCE, Rajkot Vs. Ashish Anand & Co. 2013 (31) STR 26 (Tri.-Ahmd.) 2. CST. Bangalore Vs. Gowri Computers (P) Ltd. 2012 (25) STR 380 (Tri. Bang.) 3. Special Fx Vs. CST, Mumbai 2011 (22) STR 336 (Tri. Mum.) 4. World View Vision Vs. CCE, Mangalore 2012 (26) STR 304 (Kar.) 5. Asst. Commr. Of CE vs. Krishna Poduval 2006 (1) STR 185 (Ker.) 4. Ld. Counsel submits that it was submitted before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h assesse need pay penalty of 25% of the tax amount if such payment is made within 30 days of receipt of the order. So such an interpretation does not appear to be a harmonious one. Further, the Board had clarified vide Circular C.B.E. & C. Circular No. 137/167/2006-CX-4, dated 3-10-2007 that the provisions under Section 73(3) is to the effect that no proceedings shall be initiated for recovery of penalty under Section 76 either. This position has been incorporated in section 73(3) by adding 'Explanation 2' in the said sub-section with effect from 08-05-2010 by amendment carried out through Finance Act 2010. 7. The Hon'ble Karnataka High Court in the case of ADECCO Flexione Workforce Solutions Ltd. (supra) has very categorically ruled that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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.' 9. In view of the clear provisions in the proviso, in this case SCN for recovery could have been issued for the amounts short paid ie. Rs. 3,857/- of service tax and interest of Rs. 46/- only. I find that the decision of the Tribunal in the case of Ashish Anand & Co. does not examine the effect of the proviso in subsection 73(3) and is passed sub-silentio on this provision. Since after consider the proviso I come to a different conclusion I am not following the said order. I also not that the decision of the Hon'ble Karnataka High Court in the case of W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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