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TMI Blog2015 (8) TMI 65X X X X Extracts X X X X X X X X Extracts X X X X ..... peal has been filed against Order-in-Appeal No. 19(DK)ST/JPR-II/2009 dated 20.3.2009 in terms of which service tax demand of Rs. 36,68,635/- for the period April, 2006 to March 2007 had been confirmed along with interest. Penalty under Sections 77 and 76 of the Finance Act, 1994 was also upheld although penalty under Section 78 ibid which was also imposed by the primary adjudicating authority, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant has contended that initially it was under the belief that the service tax was not payable but subsequently before the issue of show cause notice it paid service tax out of Cenvat credit and it is a settled issue that such service tax can be paid out of Cenvat credit. Even so, to avoid dispute it paid the impugned service tax in cash also in the month of June 2008 which was before the issue o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on this point is needless in view of the fact that the impugned demand was later paid in cash also before the issuance of the primary adjudication order. In these circumstances, the only issue to be decided is regarding interest and penalties. In this regard we find that the Commissioner (Appeals) has clearly noted in the impugned order that there was no suppression of facts with intent to eva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x was paid by the appellant was immediately available to it as credit. In these circumstances, Section 80 ibid is clearly invokable for the purpose of setting aside penalty under Section 76 ibid. Levy of interest in these circumstances would also be misplaced. Further, Section 73(3) ibid reads as under: "73(3) Where any service tax has not been levied or paid or has been short levied or short pai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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