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TMI Blog2013 (12) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... r account and half-yearly challan as well as ST-3 returns for the years 2006-07 and 2007-08, it was observed that the appellant had rendered services under aforesaid categories, has not reflected the actual amount of taxable service received from the service recipient in their ST-3 return or any other statutory document. Accordingly the differential amount of Service Tax of Rs.15,42,052/- was demanded and confirmed by the adjudicating authority along with the interest at the appropriate rate. He also imposed penalty under Section 76 and 78 of the Finance Act, 1994. Ld. Commissioner(Appeals) upheld the order-in-original, but set aside the penalty imposed on the Appellants under Section 78. Being aggrieved, the Appellant has challenged the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that according to sub-section 3 of section 73 of Finance Act, 1994 no notice shall be served where entire duty along with interest is paid before the issue of show cause notice. 4. Ld. A.R. for the Revenue reiterated the findings of the Ld. Commissioner(Appeals). He submitted that the Appellant never disclosed full taxable amount under the category of commercial or industrial construction service in their ST-3 returns during the relevant period and it came to notice only during the course of audit during the verification of their records. It is the contention that in this case the penalty imposed is only for delay in payment of Service Tax and as per law, the same is liable to be paid. 5. Heard both sides and perused the records. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as may be determined by the [Central Excise Officer], but for this sub-section. [Explanation 2.] - For the removal of doubts, it is hereby declared that no penalty under any of the provisions of this Act or the rules made thereunder shall be imposed in respect of payment of service tax under this sub-section and interest thereon.] (4) Nothing contained in sub-section (3) shall apply to a case where any Service Tax has not been levied or paid or has been short levied by reason of fraud; or collusion; or willful misstatement; or suppression of facts 7. It is thus evident from the aforesaid provisions that in the cases of non-payment of Service Tax on due dates, once payment along with interest is made before issuance of show cause notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of section 73(3) of the Finance Act, 1994 should be made applicable and no show cause notice should have been issued. This judgement has been followed by this Tribunal in the case of M.R. Coaltings Pvt. Ltd. vs. CCE, Rajkot- 2013 (30) S.T.R. 76 (Tri.-Ahmd.). 10. The issue of penalty came up for the consideration before the High Court of Karnatake in the case of Commissioner of Service Tax, Bangalore vs. Master Kleen 2012 (25) S.T.R. 439 (Kar.). The ratio from the judgement of Hon'ble High Court in the case of Master Kleen is reproduced below:- The Revenue has preferred this appeal against the order passed by the Tribunal [2010 (17) S.T.R. 365 (Tribunal)] setting aside the orders passed by the lower authorities, imposing penalty und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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