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TMI Blog2014 (1) TMI 1557X X X X Extracts X X X X X X X X Extracts X X X X ..... see. - ST/148/2009 - FINAL ORDER No. 40007/2014 - Dated:- 3-1-2014 - Shri Mathew John, JJ. For the Appellant : Shri Shankararaman, Adv, For the Respondent :Shri P. Arul, Supdt.(AR), JUDGMENT The appellant was engaged in providing outdoor catering service in and around Chennai, during the period April, 2006 to September, 2007. The applicant was not discharging the service tax liability promptly but they were paying service tax along with interest as applicable with delays ranging from 1 day to 293 days in different months. The books of accounts of the appellant were audited on 12.09.07 and 5.10.07. The department pointed out that the appellant was not paying tax promptly and was also not paying interest on such delayed pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of show cause notice and such payment was known to the department as evident from the Show Cause Notice itself. In the show cause notice, the department alleged that the assessee is liable to pay interest on the amount of tax already paid. During the present hearing when it was pointed out that during there is a shortfall in the payment of service tax to the extent of Rs. 3,857/- and shortfall in payment of interest to the extent of Rs. 46/-, as is evident from the order, the Ld. Advocate for the appellants submits that he does not know whether the short paid amount was paid later. But he submits that the appellant will pay the short paid amount if it has not yet been paid. The proviso to Section 73(3), states that when short paid tax is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ault in September, 2007, the payment for outstanding amounts was completed only on November, 2007 and thus there was a delay of almost nearly two months after the date of audit. He further submits even after the issue of show cause notice, passing of the Order-in-Original and filing appeal before the Hon ble Tribunal, the appellant has not paid the balance amount of service tax and balance amount of interest and it appears that they have not paid such balance amounts and when the entire amount is not paid, the provisions of Section 73(3) cannot be extended. He, further submits that the appellant had collected service tax amount but not deposited and hence there is a clear suppression on the part of the appellant in disclosing the value of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat such notices are maintainable. For example, in the case of CST. Bangalore Vs. Gowri Computers (P) Ltd (supra) and Special (Fx) (supra). This is a doubtful issue because if this interpretation is adopted, in many cases, an assessee paying service tax along with interest before the issue of show cause notice will be at a disadvantage as compared to an assessee who does not furnish any information at all because against such assesse the provisions under Section 73(1A) or penal provisions under Section 78 will be applicable and such assesse need pay penalty of 25% of the tax amount if such payment is made within 30 days of receipt of the order. So such an interpretation does not appear to be a harmonious one. Further, the Board had clarifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : Provided that the Central Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the [Central Excise Officer] shall proceed to recover such amount in the manner specified in this section, and the period of one year referred to in sub-section (1) shall be counted from the date of receipt of such information of payment. 9. In view of the clear provisions in the proviso, in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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