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TMI Blog2015 (11) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... ow cause notice. - decisions squarely cover the issue in the present case. Accordingly, impugned order is set aside - Decided in favour of assessee. - Appeal No. ST/50465/2014-SM - Final Order No.51952/2015 - Dated:- 10-6-2015 - Smt. Sulekha Beevi C.S., Member (Judicial) For the Petitioner: Ms.Nupur Maheswari. Advocate For the Respondent: Shri Rajan Khanna, AR ORDER Per: Sulekha Beevi C.S. The appellant has filed this appeal challenging imposition of penalty under section 76 of the Finance Act, 1994 (hereinafter referred to as the Act) for delayed payment of service tax alongwith interest. 2. The appellant was issued show cause notice dated 8.10.2010 alleging delay in discharge of service tax liability. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the decision of the Tribunal in CST v. Master Kleen-2012 (25) ELT STR 439 (Kar), Shivas industrial Caterers India P.Ltd. v.CST-2014 (34) STR 367 (Tri.-Chen.), CST v. OTS Advertising P.Ltd.-2013 (32) STR 303 (Tri.-Bang.) and Jay Shipping v. CCE-2010 (20) STR 399 (Tri.-Mum.). 6. It is not in dispute that the appellant has discharged the service tax liability during above period along with interest. The only issue is whether or not penalty can be imposed under the provisions of section 76 of the Act. The records reveal that the service tax due on July, August, September, and October 2005 was paid on 24th December, 2005. The service tax due on 5th March 2006 was paid on 27th March 2006 with delay of 22 days. The tax due on 5th March 2007 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Service Tax, Chennai-2014 (34) STR 367 (Tri.-Chen.), it was observed that the allegation of the department that appellant being habitual offenders entire amount is to be recovered is not sustainable as there is no distinction between habitual and one time offenders under section 73 (3) of the Act. It was held therein that penalty under section 76 is not imposable when the service tax liability alongwith interest is discharged before issuance of show cause notice. 10. In Jay Shipping v. Commissioner of Central Excise-2010 (20) STR 399 (Tri.-Mum.), it was held as under:- 4. I have considered the submissions made by both the sides. According to provisions of sub-Section 3 of Section 73 of Finance Act, 1994, where there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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