2009 (12) TMI 183

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..... edly but before filing the 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. 2. Since the appeal involves only penalty under section 76 of the Finance Act, 1994 and I heard both sides at length, the waiver of pre-deposit is granted, stay petition allowed and the appeal itself is taken up for final disposal. 3. Learned Chartered Accountant on behalf of the appellant submitted that the appellant could not pay the service tax because the employees went on strike and there was a lock out declared. Consequently, there was no access to the administrative building of the company where all the records including cheque books .....

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..... jected the appellant's contention about the applicability of the letter of CBE&C cited, on the ground that the show-cause notice has been issued only for penalty under section 76 since the letter deals with the provisions of section 73 of the Act. In any case, I find that the section 73(2A) of Finance Act, 1994, which reads as under, is squarely applicable to the facts of the case : "Where any service tax has escaped assessment or has been under-assessed or service tax has not been paid or has been short-paid or erroneously refunded, the person chargeable with the service tax, may pay the amount of tax on the basis of his own ascertainment of such tax or on the basis of tax ascertained by a Central Excise Officer before service of notice .....

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..... was any suppression of fact, or mis-declaration. Therefore, once the appellants paid the service tax with interest, as per provisions of section 73(2A) of Finance Act, 1994, the Dy. Commissioner should not have served any notice in respect of service tax so paid. The question is not whether the notice is served under section 73 or not. The question is once such payment is made, the proceedings get concluded. In fact, this is what circular issued by Board provides in the letter. I am not able to accept the view that only when section 73 is cited, provision relating to conclusion of proceedings will arise. In fact, the show-cause notice has to be issued only on the basis of service tax return filed by the appellant and if no return has been f .....

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