TMI Blog2018 (8) TMI 1681X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of service tax was not by fraud, collusion or suppression of facts with intention to evade payment of service tax. There was only a default/delay in making the payment that too only to financial stringency. A substantial amount is paid much before the visit of the officers. Even then, Show Cause Notice has been issued raising demand for the entire period and the adjudicating authority has confirmed equal penalty on the demand for the entire period - Even then, Show Cause Notice has been issued raising demand for the entire period and the adjudicating authority has confirmed equal penalty on the demand for the entire period. When the demand or the service tax liability for the disputed period is paid by the appellant alongwith interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law, the original authority confirmed the demand of ₹ 1,05,09,057/- alongwith interest, and appropriated an amount of ₹ 1,00,89,307/- already paid by the appellants and imposed penalty of ₹ 1,05,09,057 u/s.78 of the Finance Act, 1994, besides penalty u/s.77 of the Finance Act, 1994. The order also directed to appropriate ₹ 4,47,541/- paid by appellant towards interest liability. Aggrieved, the appellants are now before the Tribunal. 2. On behalf of the appellant, the Ld.Counsel, Sh.S.Durairaj submitted that the appellant is not contesting the service tax liability or the interest thereon and his confining the contest in the present appeal only on the penalty imposed. He submitted that the appellant had failed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a part amount of service tax liability. For the remaining period, the service tax liability alongwith interest was paid after the Officers visit on 28/1/2009. A small amount was adjusted on their Cenvat credit. Thus the appellants had discharged the entire service tax liability alongwith interest much before the issuance of the Show Cause Notice dt.2/3/2010. As per sub-section (3) of Section 73, no show cause notice ought to have been issued, when the appellant had discharged the entire service tax liability alongwith interest on being pointed out by the officers. He relied upon the Board Circular F.No.137/67/2006 CX-4 dt.3.10.2007 and decision in the case of Commissioner of Central Excise, Pune-III Vs Core Fitness Pvt. Ltd. 2017 (4) G.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter paying the late fee of ₹ 8000/-. The entire liability was declared in their ST-3 returns. The delay in payment was due to financial constraints for a short period. The appellant had discharged the liability after selling their movable and immovable properties purchased prior to 2007-08 which would also prove the bonafide of the appellants. 4. The Ld.AR, Sh.A.Cletus supported the findings in the impugned order. He submitted that the appellant did not file returns within the due dates, even though the service tax was collected by them. The non-payment of collected service tax to the Government itself would establish suppression of facts with intention to evade payment of service tax. They have discharged the service tax, only aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid . The said sub-section intends to avoid unnecessary litigation when the assessee discharges the service tax alongwith interest. In the present case, the facts reveal that the default was only for a short period. The appellant had filed the service tax returns disclosing their liability. Further, demand has been computed by the department basing on the documents furnished by the appellants like invoices, balance sheet etc. maintained by them in the ordinary course of their business. All this would go to show that the failure to pay the service tax was only due to the financial stringencies. It is very much clear that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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