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TMI Blog2010 (1) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... dent. [Order]. - This is an application for waiver of requirement of pre-deposit of penalty of Its. 38,679/- imposed under Section 76 of Finance Act, 1994 and upheld by the Commissioner (Appeals) vide impugned Order-in-Appeal No. 24/ST/CHD-II/2009 dated 7-9-2009. 2. The appellant are registered with the department as provider of Business Auxiliary Services. Registration had been taken prior to J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waiver of penalty in terms of provision to Sub-section (3) of Section 3, read with Board's Circular No. 137/167/2006- CX. 4, dated 3-10-2007, held that this is case of default whereas the Board's Circular is applicable to the cases of fraud, collusion and wilful suppression, etc. when a SCN under Section 73(1) has been issued to a person and that person voluntarily pays the service tax along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e entire service tax demand and interest has been paid. 5. Shri R.K. Saini, learned D.R., pleaded that though the appellant had taken service tax registration during the period prior to July, 2005, for the period from July, 2005 to March, 2006, neither service tax was paid, nor service tax Returns were filed; that the fact remains that the appellant defaulted in payment of service tax by due date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Sub-section (3) of Section 73 of the Finance Act, 1994, read with Board's Circular No. 137/167/2006-CX 4, dated 3-10-2007. This Circular clearly says that once the proceedings under Section 73(3) are concluded, all the proceedings including those under Section 76, 77 & 78 also shall be concluded. In view of this, there is merit in the applicant's plea that they have strong prima ..... X X X X Extracts X X X X X X X X Extracts X X X X
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