TMI Blog2023 (7) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in this case. As per the provisions of Section 73(3) of the Finance Ac 1994, the Show Cause Notice should not have been issued to the appellant in the present case - This view has also been clarified by the Board in its Circular F.No. 137/46/2015-Service Tax dated 18.08.2015. The penalty under section 78 of the Finance Act is not imposable in this case. No penalty imposable under section 77 also, as the Appellant has taken registration and filed periodical returns regularly - appeal allowed. - Service Tax Appeal No. 229 of 2011 - FINAL ORDER No. 75649/2023 - Dated:- 8-6-2023 - HON BLE MR. P. K. CHOUDHARY, MEMBER (JUDICIAL) AND HON BLE MR. K. ANPAZHAKAN MEMBER (TECHNICAL) APPEARANCE: For the Appellant : Shri K. K. Ach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed penalty of 25% of the service tax confirmed. The Appellant is before us against the impugned order mainly for the penalties imposed. 4. In their submissions, the Appellant has primarily advanced two arguments as to why penalty should not be imposed namely (i) they have paid the service tax and interest before issue of show cause notice by their own assessment and filed statutory returns (ii) that they had no intention to evade payment of tax, hence no penalty is leviable. 5. The Departmental Representative reiterated the findings of the adjudicating authority in the impugned order. 6. Heard both sides and perused the appeal records. 7. We observe that the Appellant have not disputed their liability of service tax and have onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fideness. Since there was no suppression of fact or misstatement with intention to evade tax, the levy of penalty under the provisions of Sections 77 and 78 of the Act is not warranted. 7. We also observe that the Appellant was subjected to audit for the Financial Year 2007-2008 and the Final Audit Report (FAR) did not mention any non-payment, short-payment or erroneous payment of service tax. The audit has only reported about some ineligibility of CENVAT Credit, which were accepted and corrected by the Appellant by payment of equivalent amount through GAR-7 Challans. 8. From the above, we observe that the appellant voluntarily paid their entire service tax liability with interest thereon and reported such payments in their periodic r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata [2016 (42) S.T.R. 634 (Cal)] 10. We observe that the above decisions cited by the Appellant supports their contention that no Notice need to be issued in such cases where duty along with interest has been paid before issue of the Notice. The Board Circular cited by the Appellant supports the claim of the Appellant. Accordingly, we hold that penalty under section 78 of the Finance Act is not imposable in this case. No penalty imposable under section 77 also, as the Appellant has taken registration and filed periodical returns regularly. 11. In view of the above discussion, we set aside the impugned order and allow the appeal filed by the Appellant with consequential relief, as per law. (Pronounced in the open court on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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