TMI Blog2009 (1) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... ration etc. or it involves contravention of any of the provisions of the law with an intention to avoid payment of service tax, the provisions of sub-section (3) would not apply. - applicants have made out a strong prima facie case and accordingly stay petition is allowed - ST/173/2008 - S/110/2009-WZB/AHD - Dated:- 20-1-2009 - Shri B.S.V. Murthy, Member (T) Shri S.J. Vyas, Advocate, for the Appellant. Shri Sameer Chitkara, SDR, for the Respondent. [Order].- During the scrutiny of ST-3 returns filed by the appellant for the period from April, 2006 to September, 2006, it was noticed that there was considerable delay in payment of service tax by the appellants for each month during the period and consequently it was found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lower authorities have not accepted the contention of applicability of the provisions of Section 73(3) of the Finance Act 1994 on the ground that a show cause notice for imposition of penalty under Section 76 and 77 of Finance Act 1994 has been issued and no show cause notice has been issued under Section 73 of Finance Act 1994. I am unable to accept the view that show cause notice is issued under Section 76 and therefore the provisions of Section 73 are not applicable. Section 73(3) reads as under:- "3(1) 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est is paid by the assessee himself on the basis of his own assessment and if his assessment is wrong, he pays the differential tax immediately on being pointed out by the Central Excise Officer, the Central Excise Officer shall not issue a show cause notice to him for recovery of differential duty interest etc.. The sub-section (4) of Section 73 clearly provides that when duty has not been paid because of fraud/suppression/misdeclaration etc. or it involves contravention of any of the provisions of the law with an intention to avoid payment of service tax, the provisions of sub-section (3) would not apply. The sum and substance of the provision is that unless there is an offence or a deliberate intention not to pay duty, the Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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