TMI Blog2016 (3) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... he penalty and there after discharging his obligations as a tax payer, in view of the provisions of Section 73(4A) the proceeding should be deemed to have been concluded. By following the decision of Hon'ble Supreme Court in the case of Commissioner vs Advantage Media Consultant [2008 (10) TMI 570 - SUPREME COURT], the penalties under Section 77(1)(a) and 77(2) are set aside and penalty imposed under Section 78 is restricted to 25% of duty demanded. Decided in favour of appellant - Appeal No.ST/40104/2015 - Final Order No. 40490 / 2016 - Dated:- 16-3-2016 - SHRI P.K. CHOUDHARY, JUDICIAL MEMBER For the Petitioner : Shri M N Bharathi, Advocate For the Respondent : Shri R Subramaniyan, AC (AR) ORDER PER P.K.CHOUDHARY ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (Rs.1,47,782/- + ₹ 2,956/- + ₹ 1,478/-) 24/4/2012 challan No.1 dated 24.4.2012 Annexure-1 Interest Rs.93,000/- 11/5/2012 challan No.12 dated 11.5.2012 Annexure-1 Penalty as 25% of the tax Rs.38,054/- 24/4/2012 challan No.1 dated 24.4.2012 Annexure-1 He further submits that the Ld. Commissioner (Appeals) had failed to consider the various submissions and evidences on record and the order is therefore vitiated. He filed the copy of Section 73 of the Finance Act, 1994 and drew my attention to sub-section (4A) in support of his submissions. He re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also not collecting any service tax on the invoices raised by him to his clients. It was only after the enquiry was initiated, the appellant assessee realised his liability and he did not dispute the same and got himself registered with the Service Tax Department and paid the demand of service tax alongwith the interest and 25% of the penalty on Cum Tax calculations. The relevant provisions of Section 73 (4A) is re-produced below for better appreciation of the statute. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requirement, the invoices recorded by the assessee in the books of account shall be considered as the specified records.] (5) The provisions of sub-section (3) shall not apply to any case where the service tax had become payable or ought to have been paid before the 14th day of May, 2003. (6) For the purposes of this section, relevant date means, - (i) in the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid - (a) where under the rules made under this Chapter, a periodical return, showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire tax alongwith the interest and 25% of the penalty and there after discharging his obligations as a tax payer, in view of the provisions of Section 73(4A) the proceeding should be deemed to have been concluded. 8. It has been observed that though the appellant assessee has paid the service tax of ₹ 1,52,260/-, penalty of ₹ 38,054/- and interest of ₹ 93,000/-, the adjudicating authority in his Order-In-Original has only appropriated ₹ 1,90,270/- towards service tax and interest and has overlooked to appropriate ₹ 93,000/- paid by the assessee. This fact was brought before the Ld. Commissioner (Appeals) and the same has been recorded by him in para 2(iii) of his order. 9. By respectfully following th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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