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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 ..... 1994. The appellant took the plea that since service tax was paid on 23/04/2007 well before the issuing of Show Cause Notice on 4.3.2008 there should not have been imposition of any penalty. That is Rs.2,400/-. They also submitted that interest liability on the service tax Rs.2,36,478/amounting to Rs.2,562/(totaling to Rs.2,39,041) was also paid by them on 23.4.2007. However, there was no payment of interest of Rs.771/- for delayed payment of service tax of Rs.10,96,562/-till the date of issue of Show Cause Notice i.e. 4.3.2008. 2. Commissioner (Appeal) took the view that penalty Under Section 76 cannot be imposed where service tax have been deposited by the appellant before the issuance of Show Cause Notice. He dropped the penalty of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), the proceeding in respect of such person and other person to whom notices are served under sub-section (1) shall be deemed to concluded. d. Thus it is amply clear that in the present case, the party had only deposited the Service Tax demanded amounting to Rs. 2,36,478/-, but had not deposited the due interest thereon, hence, the Order-in-Appeal passed by the learned Commissioner (Appeals) setting aside the penalty imposed under Section 76 of the Finance Act, 1994 in not legal and proper. 4. Heard both sides, Learned department counsel reiterated the grounds of appeal which have been taken by the department while filing appeal against Order-in-Appeal passed by commissioner (appeal). He mainly contended that Hon'ble Tribunal in Nischint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-Appeal 275/ST/DLH/2012, ground of appeal filed by the revenue with their appeal No.ST/56572/13/SM and cross objections filed by the respondent. 8. Major issue for determination is whether Commissioner (appeal) is right in concluding that service tax along with interest has been paid prior to the a issue of Show Cause Notice along with some portion of interest despite the fact that there is also short payment of interest of Rs.771/which has been deposited on 4.4.2008 after the issue of Show Cause Notice which was issued on 4.3.2008. In this regard, I have also seen 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 depar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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