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TMI Blog2013 (9) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... AX, BANGALORE Versus GOWRI COMPUTERS (P) LTD. [2011 (9) TMI 808 - CESTAT, BANGALORE]. Contention of the assesse that they should be extended benefit of either section 73(1A) or section 73 (3) could not be accepted - There was element of suppression involved and the benefit of section 73(1A) could have been given only if 25% of duty was paid as penalty - Secondly section 73 (3) deals with recovery of tax not paid - Section 76 deals with penalty for delay in payment of tax - it was not possible to interpret these provisions to meant that an assessee can collect and keep the tax with him and deposit when it comes to the notice of the department and no penal consequence will follow other than interest - the defaults continued even for period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt short paid during June 2007 along with interest. Further interest under section 75 of Finance Act 1994 was demanded on instances of late payment of service tax. Further the Show Cause Notice proposed penalty under section 76 for the above defaults. On adjudication the following consequences were ordered against the appellants. "ORDER 8.1 I demand an amount of Rs.4,766/- (Rupees Four thousand seven hundred and sixty six only) being the Service Tax and Education Cess short paid for the quarter ending June 2007 from M/s. Syndicate Bottles under Section 73 (1) of the Act read with Section 73 (2) of the Finance Act, 1994. 8.2 I appropriate the Service Tax and Education Cess of Rs.4766/- paid by the assessee on 02.05.2008 towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st of Rs. 76972/- was pointed out the same was paid within 21 days from issue of Show Cause Notice. His main contention is that in this case a Show Cause Notice could not have been issued under sub-section 73 (3). This sub-section reads as under (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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 (20) STR 344 (Tri.-Chennai) v) Arvind Plastics Vs CCE Salem 2010 (19) STR 894 (Tri.-Chennai) vi) State Bank of India Vs CCE Salem 2012 (27) STR 62 (Tri.-Chennai) vii) Anil Kumar Yadav Vs CCE Pondicherry 2011 (22) STR 20 (Tri.-Chennai) viii) Kishan M. Mehta Co. Vs CST Ahmedabad 2012 (27) STR 481 (Tri.-Ahmd.) ix) CST Bangalore Vs Fruition Informatics (P) Ltd. 2012 (26) STR 519 (Kar.) x) Commissioner Vs C Ahead Info Technologies India P. Ltd. 2012 (26) STR J25 (Kar.) 11. In the case of argument of Ld AR for Revenue is that they had paid tax before issue of SCN and interest and 25% of tax as penalty within 30 days of issue of notice he argues that section 73(1A) is applicable only in situations where the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udit of books and not through disclosure by assessee. That being the case there is element of suppression involved and the benefit of section 73(1A) could have been given only if 25% of duty was paid as penalty. Secondly section 73 (3) deals with recovery of tax not paid. Section 76 deals with penalty for delay in payment of tax. It is not possible to interpret these provisions to mean that an assessee can collect and keep the tax with him and deposit when it comes to the notice of the department and no penal consequence will follow other than interest. 15. The waiver of penalty is to be decided with reference to facts of each case. Nevertheless I have considered the various decisions cited by the counsel for appellant. In each case, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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