TMI Blog2019 (12) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice is issued subsequent to audit. Except mentioning in the show cause notice that there has been suppression of facts, no positive act committed by the appellant has been put forth by the revenue to allege suppression of facts in the impugned cases. The detection is subsequent to the audit and therefore going by the ratio of case laws cited by the appellant one cannot allege suppression of facts where show cause notice has been issued on the basis of audit objections - thus the provisions of section 73(3) of the Finance Act, 1994 are rightly attracted. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.88268 of 2018, 88286 of 2018 And Service Tax Cross Objection No. 86846 of 2018 - A/87244-87245/2019 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred an appeal before the Commissioner (Appeals ) who by impugned order No. 7/2018-19 dated 10.04.2018 has reduced the penalty amount to ₹ 13,12,815/-. Accordingly the appellants have filed the Appeal No.ST/88268/2018. Aggrieved by the imposition of lesser penalty the Department have also filed Appeal ST/88482/2018. Against this appeal the appellants have filed Memorandum of Cross Objections ST/86846/2018. 2. Audit have also found that in respect of Bharat Cement Pipe Co. appellants did not reverse credit of ₹ 13,62,049/- on the capital goods removed during 2013-14. The appellants have paid the credit as well as interest amounting to ₹ 4,75,560/- before issuance of Show Cause Notice . A show Cause Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicability of section 73(3) of the Finance Act, 1994 was not raised before the lower authorities. The learned Counsel submits that they have clearly raised this issue in the reply to the show cause notice and in the appeal filed before the Commissioner(Appeals). 5. The learned Counsel further submits that the show cause notice have been issued pursuant to the audit conducted by the department. In view of the following cases, the Show Cause Notice should be held to be barred by limitation. (i) Aditya College of Competitive Exam 2009(16) STR 154. (ii) Graphite India Limited 2018-TIOL-1028. (iii) Continental Foundation 2007(216)ELT 177(SC). (iv) Chemphar Drugs 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section(1) in re3spect of such service tax, and inform the Central Excise Officer of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid. From the above, it is very clear that the benefit of this provision will not be applicable when there is suppression , willful mis-statement, fraud, collusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, leakage of revenue and non-recoveries of dues by the Central Excise Department. Therefore, it cannot be said that only because audit party had found some credit availed as inadmissible, suppression of fact is made out. It cannot also be established that appellant had any malafide intention to suppress its duty liability from the department. Hence the order. 8. I further find that appellant has relied upon ratio of various cases wherein the Tribunal has consistently held that the provisions of section 73(3) OF THE FINACE Act, 1994 are to be allowed in the cases where tax is paid along with interest before issuance of show cause notice. I find that Karnataka High Court has observed in the case of Adecco Flexione Workforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and this Court. It is high time that the authorities shall issue appropriate directions to see that such tax payers are not harassed. If such instances are noticed by this Court here after, certainly it will be a case for taking proper action against those law breakers. 9. I find that except mentioning in the show cause notice that there has been suppression of facts, no positive act committed by the appellant has been put forth by the revenue to allege suppression of facts in the impugned cases. I find that the detection is subsequent to the audit and therefore going by the ratio of case laws cited by the app0ellant one cannot allege suppression of facts where show cause notice has been issued on the basis of audit obje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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