TMI Blog2019 (6) TMI 1274X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax for the month of October 2014 and December 2014 along with interest in May 2015 but still the Commissioner (A) imposed the penalty of ₹ 3,84,717/- under Section 78. Once the appellant has paid the service tax along with interest, he is not required to pay penalty under Section 78. Appeal allowed - decided in favor of appellant. - ST/20259/2019-SM - Final Order No. 20491/2019 - Dated:- 21-6-2019 - MR. S.S GARG, JUDICIAL MEMBER For the Appellant - Mr. Cheriyan Punnoose, Advocate A.K.B. ASSOCIATES For the Respondent - Mrs. Kavitha Podwal, AR ORDER The present appeal is directed against the impugned order dated 3.12.2018 passed by the Commissioner (A) where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposing to demand and recover service tax amounting to ₹ 58,12,838/- along with interest and to impose penalty for various contraventions of law. 2.2 The appellant in their defence argued that during the impugned period, they had discharged their service tax liability regularly by debiting their CENVAT credit account for the respective months. They stated that except for the month of October 2014 and December 2014, they always had sufficient balance in their CENVAT account to cover their monthly tax obligation which was duly debited to offset such obligation. As for the months of October and December 2014, they stated that the service tax short paid of ₹ 7,69,433/- was made good by them in May 2015 along with intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the facts and the binding judicial precedent. He further submitted that the appellant has already paid service tax for debiting CENVAT account every month. The short-payment of service tax of ₹ 7,69,433/- for the month of October 2014 and December 2014 was also paid in May 2015 along with interest. He further submitted that the entire service tax demand has been paid before the issuance of show-cause notice and therefore, the department was not required to issue the show-cause notice as provided under Section 73(3) of the Finance Act,1994. He further submitted that longer period of limitation is not invokable as the show-cause notice itself was based on documents maintained by the appellant and there was no suppression of informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has paid the service tax along with interest and in view of decisions cited supra, is not required to pay penalty under Section 78. This Tribunal in the case of Krishna H.T. vs. CCT cited supra, has held in para 6 as under: 6. After considering the submissions of both sides and perusal of material on record, I find that it is an admitted fact that the appellant had paid the service tax along with interest much before the issuance of the show-cause notice. I also find that after payment of service tax and the interest, the appellant ide the letter dated 22/01/2013 informed the Assistant Commissioner regarding the said payment of service tax and interest and requested not to issue show-cause notice under Section 73( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had no intention to suppress any information or withhold any information from the department with an intention to evade payment of service tax. In any case, the appellant was eligible for CENVAT credit of service tax paid and there was no need for him to evade any payment of tax. In these facts and circumstances, the decision of the Tribunal in the case of Essar Ltd., cited supra squarely applies. Accordingly, we are of the view that the penalty is not imposable on the appellant under the provisions of Section 77 and 78 of the Finance Act, 1994, in view of the Section 73(3) of the Finance Act, 1994 read with Section 80. Accordingly, we allow the appeal. The appellant has not disputed service tax and interest liability and therefore, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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