TMI Blog2017 (6) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... d 15 (iv) that the adjudicating authority has recorded a finding that the respondent-assessee willfully suppressed the true and correct value of the freight incurred. But, the findings recorded in Paragraph-15 (iii) and 15 (iv), in our considered view, are not sufficient to enable the Department to fall back upon sub-section (4) of Section 73, so as to keep the application of Section 73(3) out of the reach of the respondent-assessee. Penalty rightly deleted - appeal dismissed - decided against Revenue. - Central Excise Appeal No. 24 of 2017 - - - Dated:- 13-3-2017 - V. Ramasubramanian And J. Uma Devi, JJ. JUDGMENT ( Per VRS,J ) Aggrieved by the deletion of penalty by the Commissioner (Appeals) and confirmation of the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , on the short ground that since the respondent had paid the tax before the issue of the show-cause-notice, they required a lenient treatment. 8. As against the said order, the Revenue filed an appeal before the CESTAT. The CESTAT followed a decision of the Mumbai Bench of the Tribunal in Sunitha Tools (P) Limited Vs. CST, Mumbai 2014-TIOL-2094, and dismissed the appeal. Therefore, the Revenue is before us. 9. It is strenuously contended by Ms. Sundari R Pisupati, learned senior standing counsel for the Department, that wherever there is fraud, collusion, willful mis-statement or suppression of facts, the liability to pay the penalty is automatic, in view of Section 78(1) read with Section 73(4). Heavy reliance is placed upon the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions were available in the specified records. 13. After the amendment under the Finance Act, 2015, the penalty leviable under the first proviso remained at 50% and the penalty payable in cases where service tax and interest was remitted within 30 days of service of notice, was reduced to 15%. 14. Therefore, it is clear that both before and after the amendment, the Act did not treat all cases of fraud, collusion, willful mis-statement, suppression of facts or contravention of the provisions of the Act alike. The liability to pay penalty arose in cases of fraud, collusion, willful mis-statement, suppression of facts or contravention of the provisions of the Act. But, the quantum of said penalty depended upon the question as to whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1). But, under sub-section (3) of Section 73, the Department cannot even issue a show-cause-notice, in cases where the service tax and interest has been paid, immediately upon the ascertainment of the service tax either on own assessment or on the basis of what was ascertained by the Central Excise Officer. Sub-section (3) was intended to confer an extended benefit much more in nature than the varying degrees of penalty imposed under the different provisos of sub-section (1) of Section 78. 16. It is true that sub-section (4) of Section 73 keeps the operation of sub-section (3) out of the purview, in cases where the service tax has not been levied, paid, short-levied or short-paid by reason of fraud, collusion, willful mis-statement, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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