2015 (11) TMI 658

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..... ppellant, it was filed only for waiver of penalties under Section 76, 77 and 78 of Finance Act, 1994. 2. The fact of the case is that the appellant is engaged in the repair and maintenance of roads and survey and map making services. On intelligence collected by the Department, it was found that appellant was not paying the service tax on said taxable service. Officers visited the premises of the appellant on 13/02/2010 and recovered some incriminating documents. On scrutiny of these documents, it was observed that appellant was not paying service tax on the service provided under the category of Survey And Map Making and Maintenance And Repair Services to the tune of Rs. 15,88,251/- therefore show cause notice was issued and the same .....

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..... imposed. As regard survey and map making services, it is her submission that there is no suppression or malafide intention on the part of the appellant to evade payment of service tax for the reason that all the transaction have been recorded in their books of account and on pointed out by the department they have immediately paid service tax alongwith interest. In view of these facts the case of the appellant is squarely covered under Section 73(3) of Finance Act, 1994. According to which no show cause notice should have been issued and consequently no penalty should have been imposed. She placed reliance on this Tribunal judgment in the case of Patel Infrastructure Pvt. Ltd. Vs. Commr. of C. Ex. Rajkot [2014 (33) S.T.R. 701 (Tri. Ahmd)] w .....

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..... vice, I found that there is force in the argument of Ld. Counsel that transaction were recorded in their books of account, therefore they had no intention to evade service tax. Moreover, immediately on pointed out by the department, payment of service tax alongwith interest was admittedly made by the appellant and there is no contest thereon, they have made out fit case for waiver of penalty under Section 73(3) which is extracted below: (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on t .....

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