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TMI Blog2014 (9) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... tice issued under Section 73 includes person falling under Section 71A in view of the Supreme Court laying down the law in the cases of Gujarat Ambuja Cements Ltd. v. Union of India, 2005 (182) ELT 33 (SC) and Commissioner of Central Excise, Meerut-II v. L.H.Sugar Factories Ltd., 2005 (187) E.L.T. 5 (SC), without being apprised of the above aspects raised in the grounds of appeal? 2. Whether or not the show cause notice issued under the amended Section 73 by the Finance Act, 2004 removing the clause 'the persons liable to file returns under Section 70' is maintainable in law, especially such an amendment read with Section 71-A has been confirmed by the Supreme Court vis-a-vis the legislative competence in terms of Section 68 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to Sub-section (1) of Section 68 of the Act for filing of return in respect of service tax for the respective period and service specified therein and such person shall furnish return within six months from the day on which the Finance Bill, 2003, receives assent of the President in the prescribed manner on the basis of the self assessment of service tax and the provisions of Section 71 of the Act shall apply accordingly. 47. Considering the limited purpose for which Section 71A of the Act was introduced to cover the period of six months and in terms of Sub-section (1) of Section 73 of the Act where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the proper officer, within one y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax had not been paid by reason of fraud or collusion or wilful mis-statement or suppression of fact or contravention of any of the provisions of the Act, with an intent to evade payment of Service Tax. We have perused the order in original passed by the Assessing Authority and we find that there is no such finding against the assessee of it being guilty of wilfully not paying tax by reason of any of the matters provided in clauses (a) to (e) of Section 78(1) of the Act. Further more, Section 80 of the Act, which starts with a non-obstante clause, states that notwithstanding anything contained in the provisions of Sections 76, 77 and first proviso to Sub-section (1) of Section 78 of the Act, no penalty shall be imposable for any fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the law. 52. The Honourable Supreme Court, in the case of PRATIDHA PROCESORS Vs UNION OF INDIA reported in (1996) 11 SCC 101, held that in fiscal statutes, the tax is the amount payable as a result of the charging provision and it is a compulsory extraction of money by a public authority for public purposes, the payment of which is enforced by law. Penalty is ordinarily levied on an assessee for some contumacious conduct or for a deliberate violation of the provisions of a particular statute. It was further pointed out that interest is compensatory in character and is imposed on the assessee who has withheld payment of any tax as and when it is due and payable; that the levy of interest is levied on the delay in payment of tax due an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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