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TMI Blog2013 (7) TMI 488X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of Show Cause Notice (4.3.2008). - Commissioner (Appeal) was not correct in dropping penalty as requirement of Section 73 was not fulfilled - no justification in dropping the penalty - Order of commissioner (Appeal) set aside – appeal decided in favour of revenue. - Appeal No. ST/56572/2013-ST[SM] - Final Order No. A/56956/2013-SM(BR) - Dated:- 15-7-2013 - Mr. Manmohan Singh, J. For the Appellant: Sh. Ravi Saraf N.K. Rajguhia, CA For the Respondent: Sh. V.P. Batra, DR JUDGEMENT Per Manmohan Singh: An appeal has been filed by the department against the order in appeal No. 275/ST/DLH/2012 dated 10.10.2012. Commissioner (appeal) has observed that service tax amounting to Rs.2,36,479/- was short paid by the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Show Cause Notice. b. Similarly, the other case law on which the Hon ble CESTAT relied upon in the above cited case i.e. M/s Santhi Casting Works Vs Commissioner of C.Ex., Coimbatore2009 (15) S.T.R. 219 (Tri-Chennai) also speaks that Section 73(3) of the Finance act, 1994 providing for non-issue of Show Cause Notice when Service Tax is paid with interest voluntarily. c. The CBEC s Circular No. 137/167/2006-CX.4 Dated 03.10.2007 which was relied upon by the Hon ble CESTAT in the above referred case laws clearly supports the contention of the department wherein the provisions of Section 73 of the Finance Act, 1994 have been discussed. The relevant portion of the Section 73 is reproduced below: Provided further that where such perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be given. 5. Mr. Ravi Saraf appearing on the behalf of the respondents submitted that it was observed by the respondent that service tax amounting of Rs.2,36,479/was short deposited and that amount was deposited along with interest amount to Rs.2,562/-. He also submitted that interest of Rs.771/on delayed payment of service tax during the period from 10/10/2006 to 31/03/2007 was paid later on 4.4.2008 as per calculation below: MONTH INTEREST FOR DELAYED PAYMENT October, 06 Rs. 17/- November, 06 Rs.38/- December, 06 Rs.303/- January, 07 Nil February, 07 Nil March, 07 Rs.413/- TOTAL Rs.771/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s misinterpreted. Order clearly states that Show Cause Notice ought to have been issued after tax has been paid with interest. 10. I have examined this Show Cause Notice issued on 4.3.2008 and payment of service tax of Rs.2,36,479/and interest of Rs.2,562/which was paid on 23.4.2007 which was prior to the issue of Show Cause Notice. However, I have also examined that interest on delayed payment amounting to Rs.771/was not paid before issue of Show Cause Notice (4.3.2008). It was actually paid on 4.4.2004 which was after the issue of Show Cause Notice. These facts clearly point out that Commissioner (Appeal) was not correct in dropping penalty of Rs.2,36,479/as requirement of Section 73 was not fulfilled. 11. I also find no justification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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