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TMI Blog2012 (6) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... acted 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. imposition of penalties under Sections 76, 77 and 78 in this case was not at all warranted and therefore set aside. The appeal is allowed - ST/305/2009 - A/294/11/SMB/C-IV - Dated:- 20-7-2011 - P.R. CHANDRASEKHARAN, J. ORDER 1. This appeal is directed against the Order-in-Appeal No: SR/195/NGP/2009 dated 07/09/2009 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, K.G.K. Nair, proprietor of M/s. Saraswati Engineering, Gadchandur, Distt. Chandrapur is a small-scale contractor eng ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of penalty both under Section 76 and under Section 78 of the Finance Act, 1994 and a further penalty of Rs. 1,000/- under Section 77. 2.3 The appellant-assessee filed an appeal before the Commissioner (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 they had also deposited late fee of Rs. 2,000/- for the delayed filing of the return and, therefore, they pleaded that as per the provisions of Section 73 of the Finance Act, 1994, no notice could have been issued against them for demanding servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice. They had also paid the late fee of Rs. 2,000/- for the delayed filing of the service tax return. In spite of this the department has chosen to issue a show-cause notice in October 2008. Sub-section (3) of Section 73 reads as follows: "(3) Where any service 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 infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of such service tax then, no notice under sub-section (1) in respect of the amount so paid shall be served. In the instant case, the assessee discharged the tax liability for the period April to September, 2007 in August 2007 and May 2008. Interest amounting to Rs. 10,049/- was paid on 05/05/2008. They had filed the return due on 25/10/2007 by 09/05/2008. They also paid the late fee of Rs. 2,000/- for the delayed filing of the return as per the instructions of the officer who received the return. The above conduct of the assessee make it abundantly clear that there was no wilful misstatement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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