2017 (8) TMI 517

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..... 13.04.2015 was issued proposing demand of short paid service tax and also for interest and penalty and restriction under Section 78. In the adjudication, demand of service tax amounting to Rs. 21,72,499/- and interest of Rs. 13,48,133/- was confirmed and appropriated against payment already made. Penalty of Rs. 21,72,499/- was also imposed under Section 78(1) of Finance Act, 1994. Being aggrieved by the Order-in-Original, the appellant filed appeal before the Commissioner (Appeals) only contesting penalty imposed under Section 78(1) by invocation of Section 73(3). The Commissioner (Appeals) rejected the appeal and upheld the Order-in-Original. Therefore the appellant is before me. 2. Shri Prasad Paranjape, Ld. Counsel for the appellants s .....

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..... of service tax along with interest before issuance of show-cause notice they should be provided immunity under Section 73(3) and 73(4) which reads as under:- "73(3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the Central Excise Officer of such payment in writing, who, on receipt of suc .....

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..... of the rules made thereunder with intent to evade payment of service tax." 6. As per the plain reading of the above section, it can be seen that Section 73(3) can be invoked only in a case where there is no suppression of fact on the part of the appellants. Otherwise in terms of sub-section (4) immunity under Section 73(3) is not available. In the present case, the appellants have short paid the service tax for the period 2009-10 and 2010-11. Even if it is accepted that the submission of ld. Counsel that appellant is well organised company, at the end of the financial year when account is finalised, all the reconciliation is carried out and if there is any short payment, it should have been detected on finalisation of books of accounts. H .....

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