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TMI Blog2018 (8) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants had only partly discharged the service tax for the month of February, 2009. Further, no service tax was paid for the period from March, 2009 to December, 2009. They had also not filed ST-3 returns for the period ending March, 2009 and September, 2009. On being pointed out, the appellants admitted the liability and paid part of the service tax along with interest. Show Cause Notice dt. 12.04.2010 was issued proposing to demand service tax to the tune of Rs. 61,13,273/- along with interest and for imposing penalties. After due process of law, the Original Authority confirmed the demand, interest and imposed equal penalty under Section 78 and penalty under Section 77 also. Aggrieved, the appellants are now before the Tribunal. 2.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax and that it was only an instance of delayed payment of service tax. 2.3 She relied upon the decision of the Hon'ble High Court of Hyderabad for the State of Telangana and the State of Andhra Pradesh in C.C.E., Visakhapatnam Vs. M/s. Tirupathi Fuels Pvt. Ltd. reported in 2017-TIOL-1075-HC-AP-CX. She also relied upon the decision in the case of Shridhar Castings Pvt. Ltd. Vs. Commissioner of Central Excise & Customs, Nagpur [2015-TIOL- 1199-CESTAT-DEL], M/s. Jwalla Security Force Vs. Commissioner of Service Tax Cell, Nagpur [2015-TIOL-2397-CESTAT-MUM] and also a Final Order passed by this Tribunal (Final Order No. 41943/2018 dt. 06.07.2018). 3.1 The Ld. AR Shri. S. Govindarajan supported the findings in the impugned order. He s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as issued on 12.04.2010. It can be seen that the appellant has paid a substantial amount prior to issuance of Show Cause Notice. The Ld. Counsel submitted that the short payment was because of financial shortage of funds and due to administrative difficulties. It is her case that in the Manpower Supply Recruitment Services, there is much problem of receiving the payments in due time and therefore, the appellants could not discharge the service tax within time. That on being pointed out, the appellant has made all efforts to raise funds and pay up the entire service tax liability. The Hon'ble High Court of Hyderabad for the State of Telangana and the State of Andhra Pradesh in the case of M/s. Tirupathi Fuels Pvt. Ltd. (supra) has observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion proceedings, that the ingredients of Section 73(4) ibid. are not present, and the notice would otherwise not have been required to be issued, this by itself, in our view, is a reasonable cause to invoke the provisions of Section 80 ibid. for waiver of any remaining penalties that may have been issued by the adjudicating authority. The Ld. AR had argued that financial hardship cannot be taken as a "reasonable cause" for the purposes of Section 80. In the peculiar facts of this case, the appellants, for the disputed period, were always one step behind in paying up their tax liabilities, since they were paying up the arrears built up for the previous periods. This is the fact which has been taken cognizance of and found correct by the adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more disadvantageous position as compared to an assessee who would not have paid any tax and did not file any return. In latter type of cases penalty under Section 78 would be applicable and the assessee gets concession in paying 25% of duty as penalty if such payment is made promptly. The argument raised by Revenue can be canvassed even in a situation wherein an assessee pays both tax and interest before issue of SCN. That is, the interpretation canvassed by Revenue is to the effect that anybody who pays Service Tax along with interest before issue of SCN will be liable to pay penalty under Section 76 putting such assessees at a disadvantageous position as compared to an assessee who does not make payments at all before issue of SCN. No b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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