TMI Blog2015 (11) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited penalty/late fee for delay in filing the returns. Further, it is found that no further tax is found to be recoverable from the respondent assessee. Accordingly, I find that the appellant is entitled to the benefit both under Section 73(3) as held by the learned Commissioner (Appeals) as well as also benefit under Section 73(4A) available in the provisions of the Finance Act, 1994 - respondent assessee will be entitled to refund of the penalty already deposited with interest as per rules - Decided in favour of assessee. - Appeal No. ST/85279/14 - - - Dated:- 8-5-2015 - Shri Anil Choudhary, Member (Judicial) For the Petitioner : Shri S.V. Nair, AC (AR) For the Respondent : Shri M.A. Nyalkalkar, Advocate ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee have filed ST-3 returns on 10.7.2011 for both the half year ending on 30th Sept. and 31st March for the financial year 2006-07. Further, the assessee had also paid late fee of ₹ 2,000/- each for delayed filing of ST-3 returns. Further, the assessee also paid penalty @ 1% of the Service Tax per month of delayed deposit on 17.11.2011 in accordance with the provisions of Section 73(4A) of the Finance Act, 1994 and intimated to the Revenue requesting closure of the case and waiver of show-cause notice as provided. Further, in para 5, the amount of Service Tax, interest and penalty paid by the assessee have been specified in the Order-in-Original according to which, total Service Tax paid including cess to the tune of ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 73(4A) of ₹ 75,519/- was appropriated. 2.1 Being aggrieved, the appellant preferred appeal before the Commissioner (Appeals), who vide the impugned order was pleased to allow the appeal recording the following findings: - 11. I find that the appellants have not contested their Service Tax liability and they are only contesting the penalty imposed under Section 78 of the Act. Accordingly the limited issue to be decided in this case is whether the appellants are liable to penalty under Section 78 of the Act and whether the benefit of Section 73(3) or Section 80 of the Act can be extended to the appellants 12. I find that the Adjudicating Authority has given a clear finding in para 15 and 16 of the impugned Order-in-Origi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Service Tax, the appellants are entitled for the benefit of Section 73(3) of the Act. Therefore, there was no need to issue the show-cause notice in the first place and in consequence appellants were not liable to any penalty. This being the case the learned Adjudicating Authority is not being just, fair and legal in confirming the show-cause notice issued to the appellants and imposing the penalty under Section 78 of the Act. 13. In view of the foregoing the impugned Order-in-Original No. 14A/ADC/ST/KOP/2012 dated 14.09.2012 passed by the Additional Commissioner, Central Excise Service Tax, Kolhapur Commissionerate, Kolhapur is annulled. The payment of Service Tax and the interest along with late fee for the delay in filing th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest and penalty under the provisions of Section 73(4A), no show cause was required to be issued is rightly held by the learned Commissioner (Appeals). Thus, there is no illegality and infirmity in the impugned order and as such the appeal is fit to be dismissed. 5. Having heard on rival contentions, it will be beneficial to take notice of Section 73(4A) of the Finance Act, 1994: - {4A) Notwithstanding anything contained in 6[sub-section (4)], where during the course of any audit, investigation or verification, it is found that any service tax has not been levied or paid or has been short levied or short-paid or erroneously refunded, but the true and complete details of transactions are available in the specified records, the perso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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