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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 ..... d a show cause notice claiming penalty. So, tax and interest was paid before issue of show cause notice - Therefore, impugned order is liable to be set aside - Decided in favour of assessee. - Appeal No.S.T.405/11 - ORDER NO.A-212/KOL/13 - Dated:- 26-7-2013 - DR. I.P. LAL, J. For the Appellant: Shri S.P. Majumder, Advocate For the Respondent: Shri S. Chakraborty, A.C.(A.R.) JUDGEMENT Per Dr. I.P. Lal 1. This Appeal is filed against Order-in-Appeal No.75/BOL/2011 dated 24.06.2011. 2. The facts of the case in brief are that the Appellant are engaged in providing taxable services under the category of commercial or industrial construction service and manpower recruitment agency service. On scrutiny of the balance sheet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been initiated against them by virtue of sub-section 3 of section 73 of Finance Act, 1994. He further submitted that the Ld. Commissioner(Appeals) has dropped the penalty under Section 78 by observing that there was no suppression for willful misstatement of facts with intention to evade payment Service Tax. In these circumstances, their case was fully covered by the sub-section 3 of section 73 of the Act. He cited various judgements which are mentioned below :- a) Commr. of Service Tax, Bangalore vs. Master Kleen 2012 (25) S.T.R.439 (Kar.) b) M.R. Coatings Pvt. Ltd. vs. Commr. of Central Excise, Rajkot 2013 (30) S.T.R. 76 (Tri.-Ahmd.) c) C.C.E. S.T., LTU, Bangalore vs. Adecco Flexione Workforce Solutions Ltd. 2012 (26) S.T.R. 3 (K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid Explanation.[1] - For the removal of doubts, it is hereby declared that the interest under section 75 shall be payable on the amount paid by the person under this sub-section and also on the amount of short payment of service tax or erroneously refunded se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act, 1994. I find that once the appellant has already discharged Service Tax liability and the interest thereon and no additional liability has been adjudged in the adjudication proceedings, provisions of section 73(3) will be applicable in this case and there was no necessity of issuing any show cause notice to the appellant. In such cases no penalty is imposable by virtue of Explanation 2 to sub-section (3) of section 73 of the Finance Act, 1994. 9. Hon ble Karnataka High Court in the case of CCE ST, LTU, Bangalore v. Adecco Flexione Work Force Solutions Ltd. -2011-TIOL-635-HC-KAR-ST has upheld the ratio that in case the entire amount of Service Tax liability, interest thereon stands paid by the appellant before issuance of show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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