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2017 (12) TMI 284

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..... - The appellant by not declaring the correct value despite collecting the service tax and non-payment thereof fall under the provisions of Section 73(4) of the Act, therefore not entitled for the immunity as provided u/s 73(3) of the Act. Penalty upheld - appeal dismissed - decided against appellant. - ST/87022/13 - A/90289/17/STB - Dated:- 18-10-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member (Technical) Shri S.A. Gundecha, Advocate for Appellant Shri B.Kumar Iyer, Supdt. A.R. (A.R) for respondent ORDER Per: Ramesh Nair This appeal is directed against order-in-original passed by the Commissioner of Central Excise Pune-I whereby demand of ₹ 68,16,271/- was confirmed, said amount pai .....

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..... l difficulties etc. The appellant admittedly paid the service tax before issuance of show cause notice therefore penalty under Section 78 should not have been imposed. He submits that the appellant did not have any intention to evade service tax, accordingly the penalty deserves to be waived invoking Section 80 of the Act. He submits that in the similar circumstances in various judgments it has been considered that the penalty under Section 78 cannot be imposed invoking Section 80 of the Act. He further submits that since the appellants have paid the entire service tax along with interest, the case is covered by Section 73(3) according to which no show cause notice should have been issued and the case could have been concluded on the basis .....

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..... lant. He further submits that the appellant have also not declared the non-payment of service tax in the service tax return. As regard the submission of the Ld. Counsel for waiver of penalty invoking Section 73(3) of the Act, he submits that since the demand was raised by invoking the extended period, the ingredients required for invoking the extended period and for imposing the penalty under Section 78 are common. Therefore once the demand of extended period is sustained, the penalty under Section 78 is inevitable. In support of his submission he placed reliance on the following judgment. (i) IWI Corgenic Vaporization System India Vs. C.C.E. C S.T. Vadodara-II - 2016 (41) STR 290 (Tri.-Ahmd.) (ii) IWI Crogenic Vaporization Sy .....

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..... ficulties faced by them, atleast they should have declared the correct value and dues of service tax in their ST-3 return which they failed to declare this established the malafide intention of the appellant. As regard the submission of the Ld. Counsel on waiver of penalty invoking Section 73(3) of the Act, we have gone through the said Section which is reproduced below: Section 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 .....

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..... his Chapter or of the rules made thereunder with intent to evade payment of service tax. From the plain reading of the above Section, we find that the show cause notice can be waived under Section 73(3) only when there is no suppression of fact or malafide intention with intend to evade payment of duty and the amount of service tax liability alongwith interest is paid by the assessee before issuance of the show cause notice. As per the facts of the present case, demand was raised for extended period and the same stand admitted. The ingredient required for invoking extended period as well as penal provisions under Section 78 are more or less the same. In Section 73(4) of the Act, it is provided that if the non-payment of service tax is o .....

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