TMI Blog2016 (3) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1994, whenever any service tax has not been paid or short paid, a notice has to be issued requiring the assessee to show-cause as to why he should not pay the amount specified in the notice. What is clear from the show-cause notice is that the show-cause notice speaks of non-filing of return from October 2003 and does not specify any amount to be paid by the assessee. It is a statutory requirement that amount to be paid has to be indicated in the show-cause notice and in the adjudication proceedings, the adjudicating authority is required to determine the amount payable as per the provisions of Section 73(2) of Finance Act, 1994. Therefore I find that the submission of learned counsel that confirmation of the demand or confirmation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the same are reproduced below:- I have carefully gone through the records of the case and the submission made by the assessee at the time of personal hearing. A case was registered against the assessee as he had not filed the ST-3 returns from Oct'2003. As the Show Cause Notice was issued during Nov'2005 it has to be construed that the demand is for the period from Oct'2003 to Sept'2005. The assessee while submitting the papers to the Commissioner (Appeals) in the appeal filed by them against the Order in Original No. 122/2006 dt.21.7.2006 had enclosed a copy of the appeal to this office also. On verification of the said papers it is seen that the assessee has filed the ST-3 returns as detailed below: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn, I conclude that the amount quantified by the assessee is correct. Further as the assessee has delayed payment of the tax and has filed the ST 3 returns late he is liable for penalty under the provisions of Section 76, 77 78 of the Finance Act, 1994. 3. This order was challenged by the appellants before the learned Commissioner(Appeals) who vide his order dt. 26/10/2009, rejected the appeal for failure to deposit the amount of penalty as directed by him. Even on merits, he held that penalty is sustainable. 4. This order was challenged and the Tribunal vide Final Order No.172/2011 dt. 25/02/2011 remanded the matter to the Commissioner(Appeals) to deal with the assessee s penal liability properly and pass a speaking order. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of demand for unspecified amount and imposition of penalty is in order. When the returns were filed belatedly, the Department could not have been aware of the services rendered by the appellant and non-payment of service tax on the same. Therefore the suppression has been correctly invoked. Nevertheless in view of the fact that returns were filed belatedly, the penalty under Section 76 is sustainable. Both sides could not indicate the dates on which the service tax was paid, whether it is after the issue of show-cause notice or before is therefore not known. 8. I have considered the submissions made by both the sides. It is strange that while issuing show-cause notice on 10/11/2005, the Departmental officers did not even know that proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Section 73(2) of Finance Act, 1994. Therefore I find that the submission of learned counsel that confirmation of the demand or confirmation of the amount paid and appropriation thereto is totally incorrect and not valid is correct. Once there is no amount specified in the show-cause notice, as submitted by the learned counsel, the only action available at this stage is to treat the show-cause notice as having been issued only for the purpose of not filing the returns. Therefore as submitted by the learned counsel, the confirmation of demand, appropriation of the amount paid towards demand and interest and penalties under Section 76 and 78 of Finance Act, 1994 cannot be sustained. The only penalty that can be sustained is the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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