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TMI Blog2014 (7) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... ore issue of show cause notice. A show cause notice dt . 25.3.2009 was issued for demanding interest of Rs.3 ,87,412 /- for the delayed payment of tax and to penalty of Rs.7,05,806/- under Section 76 of the Finance Act, 1994. The Commissioner by the impugned Order confirmed the demand of interest and imposed penalty as proposed in SCN and appropriated the amount of interest of Rs.2 ,16,340 /- already paid by the appellant. Aggrieved by this order, the appellant filed this appeal before the Tribunal. 2. Learned Advocate appearing for the appellant pleaded that there was a genuine reason for delayed payment of service tax. In view of the earlier proceedings which resulted in OIO No.92/2007 dt . 25.5.2007 passed by the Commissioner of Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , penalty is mandatory in nature. Section 76 ibid is applicable from the due date till the failure is rectified. Nature of penalty imposable under Section 76 ibid is different from that under Section 78 ibid. Ld. A.R also argued that appellant has paid interest only on the service tax paid in cash and they have not paid interest on the service tax amount paid through cenvat account. 4. I have carefully considered the submissions made by both sides and perused the records. There is no dispute on the fact that there is a case of delayed payment of service tax. However, the same has been paid before issue of SCN. The assessee has explained the reason for delay, due to the fact that earlier OIO No.92/2007 dt . 25.5.2007 was appealed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the post budget instructions issued by TRU vide DOF No. 334/4/06-TRU, dated 28-2-2006 (2006 (4) S.T.R. C-30) wherein it has been clarified that this sub-section provides for conclusion of adjudication proceedings in respect of person who has voluntarily deposited the service tax. 3.1 The relevant portion of Section 73 is reproduced below. - Provided further that where such person has paid service tax in full together with interest and penalty under sub-section (1A) the proceeding in respect of such person and other person to whom notices are served under sub-section (1) shall be deemed to be concluded. & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dt.3.1.2014 (in Appeal No.ST/148/2009) (2) Shriram EPC Ltd. Vs CST Chennai vide Final Order No.40137/2014 dt. 12.2.2014 (in Appeal No.ST/605/2009) 5. The case of Real Mathematic Classes (supra) as relied by the Ld. A.R is not applicable in the present case. In that case, the Tribunal observed that in the absence of any material, it is difficult to accept that the mere fact that coaching class was provided from the house was sufficient to make the proprietor to believe that she was not able to pay the tax. 6. Respectfully following the ratio of above decisions, I am of the considered view that since service tax and interest was paid before issue of SCN, the instant case, the case is covered under Section 73 (3) of the F ..... X X X X Extracts X X X X X X X X Extracts X X X X
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