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2015 (11) TMI 525 - CESTAT MUMBAI

2015 (11) TMI 525 - CESTAT MUMBAI - TMI - Penalty u/s 76 & 78 - Short payment of service tax - Suppression of facts - Held that:- Appellant have not declared value of the service tax and service tax payable correctly in the ST3 returns but data was available in the books of account and on scrutiny by the department officers. They have retrieved data from books of account only. Since, on pointed out by the department officer, appellant has paid entire service tax alongwith interest, penalty under .....

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of penalty under Section 78, therefore, I waive the penalty. Confirmation of demand of the service tax alongwith interest and payment thereof is maintained. - Decided partly in favour of assessee. - Appeal No. ST/85227/13 - Dated:- 16-6-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. Vidyasagar S. Apte, Advocate For the Respondent : Shri. A.B. Kulgod, Asstt. Commissioner (A.R.) ORDER Per : Ramesh Nair This appeal is directed against Order-in-Appeal No. P-II/MMD/229/2012 dtd. .....

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at they had short paid service tax amount of ₹ 6,37,742/- for the period January, 2009 to March, 2009 out of which an amount of ₹ 3,29,436/- had been paid by them on 14/10/2009. On pointing out that the balance amount of ₹ 3,08,306/- was not paid, the appellant then paid the amount vide Challan dated 30/8/2010 alongwith interest of ₹ 48,016/-. Show cause notice dated 15/6/2011 was issued proposing confirmation of demand and appropriation of amount of service tax paid alon .....

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-in-original. Being aggrieved by the impugned order, the appellant is before me. 3. Shri. Vidyasagar S. Apte, Ld. Counsel for the appellant submits that appellant have been regularly paying service tax and filing ST3 returns. Appellant on their own ascertainment have paid part of the amount i.e. ₹ 3,29,436/- without detection from the department, remaining amount of ₹ 3,08,306/- was not paid. On pointed out by the department during the scrutiny of the records appellant has paid the s .....

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nt voluntarily paid part of amount of ₹ 3,29,436/- However balance amount could not be paid as they were facing financial crisis. Ld. Counsel has categorically submitted that they are not contesting the demand of service tax and payment thereof alongwith interest. The Grievance is only of imposition against penalty under Section 78. He further submits that since the appellant has paid entire service tax alongwith interest before issuance of show cause notice without any protest, their case .....

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ted otherwise to the department till it was pointed out by the departmental officers; there is clear suppression of fact on the part of the appellant. It is his submission that had the departmental officer not pointed out the said discrepancy, appellant could not have made payment of duty. Therefore there is suppression of facts. Immunity provided under Section 73(3) is applicable not merely on the basis of payment of services tax and interest has been paid before issuance of show cause notice. .....

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