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TMI Blog2009 (12) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... he service tax return. Penalty has been imposed under section 76 of the Finance Act, 1994 for delayed payment of service tax and the appellants are in appeal against the same. Commissioner (Appeals) upheld the order. Held that- the appellant definitely deserves a lenient view and application of provisions of section 80 of Finance Act, 1994 even if we accept the view taken by the Commissioner (Appeals) that the proceedings cannot be said to have been concluded as the show-cause notice was not issued by invoking provisions of section 73 of Finance Act, 1994. Viewed from any angle, penalty under section 76 cannot be justified in this case and accordingly, the impugned order is set aside and appeal is allowed by way of setting aside the penalty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. However, this letter does not seem to have received any response from the department and the learned Chartered Accountant submitted that appellant has not received any reply for the same. After the lock-out was lifted, the appellant calculated the service tax payable and deposited the same with interest. Thereafter, a show-cause notice was issued on 18-9-2007 proposing penalty under section 76 of Finance Act, 1994 for delayed payment of service tax. Learned Chartered Accountant submitted that in view of the CBE&C letter F.No. 137/167/2006-CX-4, dated 3-10-2007, once the service tax is deposited with interest, the proceedings should have been treated as concluded and no show-cause notice should have been issued and therefore he submits th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (1) in respect of service tax so paid : Provided that the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise may determine the amount of short payment of service tax, if any, which in his opinion has not been paid by such person and, then, the Assistant Commissioner of Central Excise or, as the case may be, the Deputy Commissioner of Central Excise shall proceed to recover such amount in the manner specified in this section , and the period of "one year" referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. Explanation 1 : Nothing contained in this sub-section shall apply to cases falling under clause (a) of sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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