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TMI Blog2011 (7) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of the amount so paid shall be served - Decided in favor of the assessee - ST/304/2009 - - - Dated:- 20-7-2011 - Shri P.R. Chandrasekharan, J. Appearance: Shri P.V. Sadavarte, Advocate for the appellant Shri V.K. Singh, Authorised Representative (SDR) for the respondent This appeal is directed against the Order-in-Appeal No: SR/189/NGP/2009 dated 03/09/2009 passed by the Commissioner of Customs Central Excise (Appeals), Nagpur. 2. Briefly stated the facts of the case are as follows: 2.1 The appellant, Tejnarayan B. Choudhary, proprietor of M/s. T.N. Choudhary, Gadchandur, Dist. Chandrapur is a small-scale contractor engaged in providing Maintenance and Repair Services and holds Service Tax Registration No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (Appeals) and submitted before the said authority that they had discharged the service tax liability and interest thereon much before the issue of the show-cause notice and had also filed the service tax return for the relevant period before the issuance of the notice. They also informed that the late payment was due to the absence of the appellant from his work place due to ill health of his father. They pleaded that as per the provisions of Section 73(3) of the Finance Act, 1994, no notice could have been issued against them demanding service tax and also for imposition of penalties. Therefore, they prayed for setting aside the penalties imposed. However, the learned Commissioner (Appeals) did not consider their pleas and passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice 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 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, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid: Provided that the Central Excise Officer may determine the amount of short paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st amounting to Rs. 3,400/- was paid on 24/04/2008. They had filed the return due on 25/10/2007 by 24/04/2008. The above conduct of the assessee make it abundantly clear that there was no willful mis-statement or suppression of fact on the part of the assessee. Therefore, the provisions of sub-section (3) of Section 73 is clearly attracted in the facts of the case and issuance of a show-cause notice for demand of service tax and imposition of penalties was not at all warranted. 7. Learned advocate is only challenging the imposition of penalties and not any other amount paid by his client. In view of the above legal provisions, I hold that the imposition of penalties under Sections 76, 77 and 78 in this case was not at all warranted and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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