TMI Blog2018 (7) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... e ST-3 returns accounts to suppression of facts and therefore penalty under Section 78 is imposable - penalty upheld. Payment of the differential service tax along with interest before issuance of show cause notice - Held that:- It is now being settled by the Hon’ble Supreme Court in the case of Rajasthan Spinning & Weaving Mills [2009 (5) TMI 15 - SUPREME COURT OF INDIA], that when mandatory penalty is imposable, whether the duty is paid before issue of show cause notice or after notice cannot alter the penalty. Appeal dismissed - decided against appellant. - Appeal Nos. ST/30480-30481/2018 - Final Order No. A/30643-30644/2018 - Dated:- 2-7-2018 - Hon ble Mr. P. Venkata Subba Rao, Member ( Technical ) Shri R. Rajesh, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notice of the Department but for the audit of the unit. The assessee had short paid the service tax during the period but had not reconciled his accounts even after lapse of more than one year from the relevant date. It clearly shows that the assessee has willfully evaded payment of appropriate service tax and taking a chance of non-detection conducted by the Department. Accordingly, it was proposed to demand the service tax invoking the extended period along with interest. It was also proposed to impose a penalty under Section 78. After following the due process of law, the Learned Assistant Commissioner had confirmed the demands along with interest and imposed penalties under Section 75 and 78 of the Finance Act, 1994. 4. Aggri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Representative on the other hand, reiterated the arguments made in the Order-in-Original and Order-in-Appeal and said that the mandatory penalty under Section 78 cannot be set aside because there was a suppression of facts. He relied upon the judgement of Hon ble High Court of Karnataka in the case of Commissioner of Customs, Mangalore Vs. Jindal Vijayanagar Steel Ltd., [2017 (346) ELT 378 (Kar.)] and relying on the judgment of the Apex Court in the case of Union of India Vs. Rajasthan Spinning Weaving Mills [2009 (238) ELT 3 (S.C.)] wherein it was held that mandatory penalty does not get altered because of the fact that the assessee had paid the duty prior to issue of show cause notice. This judgment of the Hon ble High Court of Karna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1994 invoking the provisions of section 80 and has held that the same is not applicable in cases of suppression and fraud etc. In such circumstances, no fault can be found with the findings of the Commissioner (Appeals) order. Accordingly, appeal filed by the assessee is rejected. In view of the above, the Learned Departmental Representative argued that the fact a lower value was declared in the ST-3 returns is sufficient invoking penalty under Section 78 of the Finance Act, 1994. This mandatory penalty does not get altered by the fact but they have paid service tax as well as interest well before the issue of show cause notice. 7. I have considered the arguments of both sides and perused the records. 8. There is no dispute on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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