TMI Blog2018 (5) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the correct value was declared, intention to evade Service Tax is not established against the appellant. Accordingly the ingredients available for imposing penalty under Section 78 do not exist. If these be so the appellant was clearly entitled for none issuance of show-cause notice by the Revenue in terms of Section 73(3) of the Finance Act, 1994. The appellant have not suppressed any fact by declaring the correct value in the ST-3 return, their case is covered by Section 73(3). In the present case, the appellant though collected the Service Tax from their client but they have clear intention to pay the Service Tax as correct value declared in the ST-3 return. Therefore merely because the Service Tax was collected the ingredient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the appellant submits that the appellant have paid the entire Service Tax along with interest before issuance of show-cause notice, thereafter they have made an application vide their letter dated 21.09.2012 before the Department for concluding the matter, however the learned Commissioner has not considered the request of the appellant and issued the show-cause notice and imposed the penalties under Section 78. He submits that entire value of the services have been declared in the ST-3 return for the relevant period and clearly indicated that the Service Tax was not paid, therefore there is no any suppression of fact or malafide with intent to evade payment of Service Tax by declaring the correct value in the ST-3 return, there was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT, Chennai 2015 (39) STR 569 (Mad.) (viii) Avtar Sodhi Vs. CCE, Ludhiana 2016 (46) STR 547 (Tri.-Del.) 4. We have carefully considered the submissions made by both sides. We find that the limitation issue to be decided in the present appeal is that in the facts and circumstances of the case whether the penalty imposed under Section 78 upon the appellant is legal and correct. From the facts available on record and submissions by both sides, we find that though the appellant have not paid the Service Tax in time but they have correctly declared the value of the service provided including those value which was escaped from payment of Service Tax. Therefore when the correct value was declared, intention to evade Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. From the above sub-section 3 of Section 73, it is clear that if the assessee pays the Service Tax along with interest before issuance of show-cause notice and admit such demand, no show-cause notice should be issued. Exception from the provision is provided under sub-section (4) of Section 73 that any case where the non-payment of Service Tax is due to suppression of facts, wilful mis-declaration, collusion, fraud etc. with intent to evade payment of duty exist then the immunity available under Section 73(3) cannot be allowed. In the facts of the present case as discussed above, the appellant have not suppressed any fact by declaring the correct value in the ST-3 return, their case is covered by Section 73(3). The appellant have exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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