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Commissioner of Central Excise, Kolhapur Versus Sri Sandeep Anandrao Magdum

2015 (11) TMI 976 - CESTAT MUMBAI

Claim of refund of penalty deposited earlier - Benefit of Section 73(3) for non levy of penalty - Failure to file ST-3 returns - Held that:- Section provides that where true and complete details are available in the specified records which are admitted in the fact herein. Further, as required the assessee has deposited the amount of Service Tax in full as accepted by him, which is the same amount as determined vide the Order-in-Original and further admittedly the appellant have paid the interest .....

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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 Per: Shri Anil Choudhary The Revenue is in appeal against order of the Commissioner (Appeals) whereby the penalty imposed under Section 78 has been .....

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Ledger abstracts, Service Tax liability worksheet etc. It was also noticed that the main nature of work of the assessee is supply of man-powers for various day to day works at the factory site of JSW Energy, Jaigad. The assessee was also providing the construction work as well as road construction work. From the worksheet of Service Tax as filed by the assessee, it was noticed that the assessee have charged and recovered Service Tax at the applicable rate, i.e. when the assessee have done work .....

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ssee 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-i .....

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e amount already paid and further interest under Section 75 be not recovered and appropriated and further as to why penalty under Section 76 and 78 should not be imposed allowing adjustment of penalty of ₹ 75,519/- already deposited under Section 73(4A). The show-cause notice was adjudicated holding that there is no dispute about short payment of Service Tax liability and further observed that the assessee did not file returns on the respective due dates and the returns were filed subseque .....

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ax i.e. ₹ 10,93,531/- was imposed under Section 78 and penalty already paid under Section 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 limi .....

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layed filing of returns and delayed payment of Service Tax and the same cannot be considered as a case of suppression of facts or intent to evade payment of Tax. Besides, the appellants have also paid full amount of Service Tax along with interest before issue of show-cause notice. They have also paid the late fees under Section 70 of the Act for delayed filing of returns and the same has been accepted by the Department and accordingly no penalty has been imposed under Section 77 of the Act. Dur .....

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de payment of Service Tax cannot be alleged and the same are not sustainable. Since the appellants have paid the Service Tax along with interest before the issue of show-cause notice and since it is not a case of fraud or suppression of facts etc. or contravention of the provisions of the Act or Rules with intent to evade payment 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 .....

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of Service Tax and the interest along with late fee for the delay in filing the returns is accepted. The appeal filed by the appellants allowed in above terms. 3. Being aggrieved, the Revenue is in appeal before this Tribunal on the ground that the Commissioner (Appeals) has erred in holding that there is no case of fraud, suppression of facts etc or contravention of the provisions of Act and Rules with an intent to evade payment of Service Tax and as such there was no need to issue notice to sh .....

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lay along with interest and 15 penalty amounts to violating the provisions of the Act and further amounts to suppression of facts. Accordingly, the Revenue prays for setting aside the impugned Order-in-Appeal and restoring the penalty imposed vide Order-in-Original. 4. The learned Counsel for the respondent assessee states that no case of any suppression or contumacious conduct has been made out against the appellant, not a singe rupee has been found to be not recorded in the Books of Account. F .....

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[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 person chargeable to service tax or to whom erroneous refund has been made, may pay the service tax in full or in part, as he may accept to be the amount of tax chargeable or erroneously refund .....

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