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TMI Blog2022 (2) TMI 1076X X X X Extracts X X X X X X X X Extracts X X X X ..... issuance of Show Cause Notice. Therefore, in terms of section 73(3) of Finance Act, 1994 they are not liable for any penalty. 2. Shri Vivek S. Agarwal, learned Chartered Accountant appearing on behalf of the appellant reiterates the grounds of appeal. He submits that since the appellant has paid the amount on 14/10/2016 and 15/10/2016, much before the issuance of Show Cause Notice dated 18/04/2017. Therefore, case is covered under section 73(3) of Finance Act, 1994. He submits that in view of aforesaid sections, neither any show cause notice was to be issued by the department nor any penalty should have been imposed. 3. Shri RP Parekh, learned Superintendent (Authorised Representative) appearing on behalf of the Revenue reiterates the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid or erroneously refunded, Central Excise Officer may, within thirty months from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of service tax due from, or erroneously refunded to, such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined : [****] (2A) Where any appellate authority or tribunal or court concludes that the notice issued under the proviso to sub-section (1) is not sustainable for the reason that the charge of,- (a) fraud; or (b) collusion; or (c) willful misstatement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or therules made thereunder with intent to evade payment of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1- For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded service tax, if any, as may be determined by the [Central Excise Officer], but for this sub-section. Explanation 2. - For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon. (4) Nothing contained in sub-section (3) shall apply to a case where any service tax has not been levied or paid or has been short-levied or short-paid or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to be paid under this Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund." From the above section 73(3), it is clear that assessee is required to inform the department about their intention to avail the benefit of section 73(3) in writing. In the present case, the appellant has not informed the department that they wish to avail the benefit of section 73(3). Moreover, the demand was raised for the period 2011-12 to 2014-15 by invoking the extended per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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