TMI Blog2017 (3) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... osited with the government. The service tax collected if not deposited with the government automatically leads to an inference that there was an intention on the part of the appellant to evade the tax. The apex court decision in the case of Rajasthan Spinning and Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA] relied upon, wherein it has been held that once the ingredients spelt out in the Section 11 AC of the CEA, 1944 are present, there is no discretion to the authorities to waive the penalty on the ground that the duty and interest has been paid before the issuance of SCN. Appeal dismissed - decided against appellant. - ST/20901/2016-SM - Final Order No. 20260 / 2017 - Dated:- 16-2-2017 - Shri S. S. Garg, Judicial Mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ember 2013 besides proposing to impose penalty under Section 76, Section 77 (2) and Section 78 of Finance Act, 1994. After following the due process, the lower authority confirmed the demand along with penalty. Aggrieved by the said order, appellant filed appeal before the Commissioner (A) who rejected the appeal of the appellant and confirmed the Order-in-Original. Hence the present appeal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the Commissioner (A) did not follow the directions contained in Board s Circular dated 3.10.2007. He further submitted that the show-cause notice does not contain any allegation with evidence that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 112 (Tri.-Mumbai) iv. CCE, Bangalore-II vs. Alsthom Instrument Transformers: 2015 (322) ELT 297 (Kar.) He also submitted that the decisions relied upon by the appellant are not applicable in the facts and circumstances of the present case because in all those decisions, the duty was not collected from the recipient. It is pertinent to mention that the findings recorded by the learned Commissioner (A) in para 5 of his impugned order are relevant, which is reproduced herein below. 5. I have carefully considered the facts of the case and also the submissions made by the appellant. I find that the appellant seeks the benefit of Section 73(3) of FA as per which no SCN to be issued once the service tax and interest are paid. The iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d staff for the entire period cannot be accepted. It is possible to attribute stray lapses on part of the assessee to ill health or untrained staff or oversight. What is observed in this case is not isolated lapse but a serious lapse spanning over almost five years. It may be pointed out here that the provisions of Section 73(3) of FA can be only applied where no ingredients of fraud, collusion etc are present. Having proved that there was suppression of facts by the appellant the question of extending the benefit of Section 73(3) does not arise. The lower authority has rightly relied upon the Hon. High Court of Karnataka decision in the case of United Communication, Udupi Vs CCE [2012(281) ELT 168(Kar) and decision of the CESTAT in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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