TMI Blog2023 (8) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to pay service tax but when the audit party raised the objection that they are liable to pay service tax, then they immediately paid the service tax along with interest which is admitted in the impugned order, is justified. It is found that the case law relied upon by the Ld. DR is not applicable in the facts and circumstances of the present case because in that decisions the assessee has challenged the levibility of service tax on outdoor catering services which was adjudicated by the authorities below whereas in this case the appellant suo-moto without being pointed by the department paid the service tax along with interest much before the issuance of show cause notice hence the issue of imposition of penalty is covered by the various decisions cited in favour of the appellant. The appellants are not liable to pay penalty under Section 77 78 - Appeal allowed. - Service Tax Appeal No. 1555 of 2011 - FINAL ORDER NO. 60236/2023 - Dated:- 2-8-2023 - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Present for the Appellant: Ms. Krati Singh and Shreya Khunteta Advocates Present for the Respondent: Ms. Shivani and Shri Aneesh Dewa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ld. Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. She further submitted that in the present appeal the appellant is not contesting the demand of service tax which they have already paid along with applicable interest. She further submitted that the appellant is only contesting the imposition of penalty under Section 77 and 78. She further submitted that the appellant has already paid service tax demand along with interest suo-moto prior to the issuance of the show cause notice and without any insistence from the department and therefore the extended period of limitation invoked by the department under Section 73(3) of the Act is not applicable as the appellant has not suppressed the facts with the intention to evade the payment of service tax. She further submitted that the appellant being a Co-operative society was providing services to its members only and was under bona-fide belief that subsidy received by them is not subject to service tax as the same is a source of finance. She further submitted that the decision of the Apex Court in the case of Tisco Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y received by them. She further submitted this issue has been considered by the Tribunal and held against the assessee in the following decisions: - L. T. Grahak Sahakari Sansthan Maryadit Vs. C.S.T. Mumbai-II -2017 (49) S.T.R. 561 (Tri.-Mumbai). - Alfa Laval (l) Ltd. Employees Co-Op Consumers Society Vs. C.C.E Pune-I -2015 (40) S.T.R. 255 (Tri.- Mumbai) - Indian Coffee Workers Co-Op. Society Ltd. Vs. C.C.E Allahabad 2014 (33) S.T.R. 266 (Tri.-Del.) - Indian Coffee workers Co-OP. Society Ltd. Vs. C.C.E S.T. Allahbad 2014 (34) S.T.R. 546 (All.). 9. After considering the submissions of both the parties and perusal of the provisions of Section 73, 77 and 78 of the Finance Act. We find that in the present case the prayer is only confined to the imposition of penalty as the appellant has already paid the service tax along with interest much before the issuance of show cause notice. Even the audit on the appellant has not been conducted and no audit objection was raised. Further, here we think it appropriate to reproduce the provisions of Section 73 which is as under: 73 . Recovery of service tax not levied or paid or short-levied or short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice) and thereupon such person shall pay the amount so determined. Provided that where such person has paid the service tax in full together with interest and penalty under sub-section (1A), the proceedings in respect of such person and other persons to whom notices are served under sub-section (1) shall be deemed to be concluded: Provided further that where such person has paid service tax in part along with interest and penalty under sub-section (1A), the Central Excise Officer shall determine the amount of service tax or interest not being in excess of the amount partly due from such person (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously 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 respect of such service tax, and inform the Central Excise Officer of such payment in writing, who, on receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. On perusal of Section 73(3) shows that if a tax is paid along with interest before the issuance of show cause notice then in that case show cause notice shall not be issued and in the present case also, we find that the contention of the appellant that they had bona-fide belief that they are not liable to pay service tax but when they realised on their own, they immediately paid the service tax along with interest which is admitted in the impugned order itself. 11. Further, we find that in the case of YCH Logistics (India) Pvt. Ltd. Versus cited (Supra), this Tribunal in identical facts has held in para 5 as under: After considering the submissions by both the parties and perusal of the provisions of Section 73, 77 and 78 of the Finance Act, 1994 and the various decisions relied upon by the appellant cited supra, we find that Section 73(3) is very clear as it says that if a tax is paid along with interest before the issuance of show cause notice, then in that case show cause notice shall not be issued. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s V Commissioner of Service Tax, Bangaloro, 2009 (13) S.TR 31 and Majestic Mobikes V. CCE S.TR. 609 (Tn.). In the present case, the appellant was under a bona fide belief that it was not liable to pay service tax for the Mandap Keeper Service and Management. Maintenance and Repair Services as discussed earlier. The conduct of the appellant of prompt payment of service tax during the enquiry and after gaining knowledge about its liability to pay service tax, is sufficient reason to believe that the assessee did not have an intention to evade the payment of service tax. Therefore, no penalty can be imposed on the appellant . 12. Further, we find that the case laws relied upon by the Ld. DR is not applicable in the facts and circumstances of the present case because in those decisions the assessee has challenged the levibility of service tax on outdoor catering services which was adjudicated by the authorities below whereas in this case the appellant suo-moto without being pointed by the department paid the service tax along with interest much before the issuance of show cause notice hence the issue of imposition of penalty is covered by the various decisions cited (supra) in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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