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TMI Blog2018 (12) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... ess Auxiliary Service'. Pursuance to the Department audit, an audit observation was issued demanding service tax on various issues such as service tax on DSE incentive, Registration Fee, Cancellation Charges and Legal Fee paid to advocate. In reply to the audit observation filed on 16.06.2015 the appellant assessee had accepted and deposited the service tax of Rs. 3,46,765/- under Section 73(3) of the Finance Act, 1994 along with interest of Rs. 3,05,044/-. Show Cause Notice dated 16.11.2015 was issued for imposition of penalty. Adjudicating Authority confirmed the demand of Rs. 3,46,765/- alongwith interest and appropriated the amount of Rs. 3,46,765/- paid by the appellant towards service tax duties and Rs. 3,05,044/- paid towards interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at explanation of Section 73(3) is clarificatory in nature, hence can be made applicable both prospective and retrospective. This issue is covered by the decision of the Hon'ble Madras High Court in the case of Tamil Nadu Small Indus. Corpn. Ltd. v. CCE, Chennai [2009(234) ELT 413 (Mad.)]. I find that the provisions of Section 73(3) of the Finance Act, 1994 is applicable to the facts of the present case. The same is reproduced below: "SECTION 73. Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded.- (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 refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice. On this issue the Hon'ble Karnataka High Court in the case of CCE & ST., LTU Bangalore v. Adecco Flexione Workforce Solutions Ltd. - 2012 (26) S.T.R. 3 (Kar.) held as under: "2. The assessee has paid both the service tax and interest for delayed payments before issue of show cause notice under the Act.Sub-sec.(3) of Section 73 of the Finance Act, 1994 categorically states, after the payment of service tax and interest is made and the said information is furnished to the authorities, then the authorities shall not serve any notice under sub-sec.(1) in respect of the amount so paid." 7. In view of the above discussions it is my considered view that the appellant's case deserves waiver of penalty imposed under Section 77 & 78 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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