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2019 (6) TMI 626

..... THAT:- Appellant had not paid the service tax as the outward transportation under the category of GTA for the period from April, 2009 to December, 2011, this even though they had admittedly incurred expenses for the same. It is only during the course of EA 2000 audit that above non payment of service tax on the part of the Appellant was discovered by the revenue. This discovery on the part of the Revenue led the Appellant to deposit the service tax as well as interest thereon even before the show cause notice was issued by the revenue - In the circumstances, even if the tax and the interest on the same was paid before the issue of notice, it is not open to the Appellant to take benefit of section 73 (3) of the Act as the non payment of the .....

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..... the issuance of a notice under section 73(1) of the Finance Act, 1994 whether the Appellate Tribunal had erred in denying the benefits of Section 80 of the Finance Act, 1994 to the Appellant ? (ii) Consequently, whether in the facts and circumstances of the case, the Appellate Tribunal was right in sustaining the imposition of the penalty under section 77 and section 78 of the Finance Act, 1994 ? (iii) Whether in the facts and circumstances of the case and more particularly in light of the fact that the Appellant had paid service tax prior to the issuance of a notice under section 73(1) of the Finance Act, 1994, whether the provisions of section 73(3) of the Finance Act, 1994 would prevent the issuance of a notice under the section 73(1) o .....

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..... ary, 2015 of the Additional Commissioner, filed an Appeal to the Commissioner under section 85 of the Act. However, without success. This as the Commissioner ordered dated 25th October, 2017 dismissed the Appeal by holding the order of the Additional Commissioner dated 19th January, 2015 is correct and calls for no interference. 6. Being aggrieved, the Appellant filed an Appeal to the Tribunal. The impugned order of the Tribunal records a finding that the Appellant had not paid the service tax on outward transportation even though the expenditure was incurred on that count by it. In the context of the fact that the show cause notice had invoked extended period of limitation, the impugned order of the Tribunal held that the Appellant was not .....

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..... urse of EA 2000 audit that above non payment of service tax on the part of the Appellant was discovered by the revenue. This discovery on the part of the Revenue led the Appellant to deposit the service tax as well as interest thereon even before the show cause notice was issued by the revenue. In the above circumstances, even if the tax and the interest on the same was paid before the issue of notice, it is not open to the Appellant to take benefit of section 73 (3) of the Act as the non payment of the service tax was on account of suppression with a malafide intention to evade payment of service tax. Thus in view of section 73(4) of the Act, the benefit of section 73 (3) of the Act, claimed by the Appellant would not be available. 9. The .....

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