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2018 (5) TMI 217 - AT - Service TaxPenalty u/s 78 - service tax along with interest was paid before show cause notice - Held that - the mala fide intention is not proved - the appellant s case is squarely covered by Section 73(3) of the Finance Act, 1994, according to which, after payment of service tax along with interest, the Revenue was not supposed to issue any show cause notice - appeal allowed - decided in favor of appellant.
Issues involved: Whether the appellant is entitled to waiver of penalty under Section 78 of the Finance Act, 1994 when service tax along with interest was paid before the show cause notice.
Analysis: The appellant, represented by a consultant, argued that they failed to pay service tax on time due to a genuine belief that no tax was applicable for services received from their foreign parent company. They claimed entitlement to cenvat credit on the service tax paid, asserting revenue neutrality. The appellant highlighted that all transactions were duly recorded in their accounts. The Revenue, represented by an Assistant Commissioner, upheld the impugned order without further elaboration. The Tribunal, after reviewing both arguments, noted that the appellant had indeed paid the service tax with interest well before the show cause notice was issued, a fact uncontested by the Revenue. It was established that the appellant availed cenvat credit on the tax paid, ensuring revenue neutrality. Consequently, the Tribunal found no evidence of malicious intent on the appellant's part. Citing Section 73(3) of the Finance Act, 1994, which prohibits the Revenue from issuing a show cause notice after service tax payment, the Tribunal ruled that no penalty under Section 78 should be imposed. Accordingly, the penalty under Section 78 of the Finance Act, 1994 was set aside, and the appeal was allowed. The judgment, delivered on 18th April 2018 by Mr. Ramesh Nair and Mr. Raju of the Appellate Tribunal CESTAT Mumbai, showcases a case where timely payment of service tax, coupled with legitimate claims of misunderstanding and revenue neutrality, led to the waiver of a penalty under Section 78 of the Finance Act, 1994.
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