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TMI Blog2015 (11) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... arely covered under provision under Section 73(3) of Finance Act, 1994 - the appellant is entitle for waiver of penalty imposed under section 77 and 78, therefore the said penalties are dropped - Decided in favour of assessee. - APPEAL NO. ST/86467/13-MUM - - - Dated:- 27-2-2015 - Mr. Ramesh Nair, Member (Judicial) For the Petitioner : Shri. Vinay S. Sejpal, Advocate For the Respondent : Shri. S.V. Nair, Asst. Commissioner(A.R.) ORDER Per : Ramesh Nair This appeal is directed against Order-in- Appeal No. US/947/RGD/2012 dtd. 28/12/2012 passed by the Commissioner (Appeals). Central Excise Service Tax, Mumbai, wherein Order-in-Original was upheld and appellants appeal was rejected. The fact of the case is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11. It is his submission that this case is of only late payment of service tax and there was no intention to evade the service tax. He further submits that audit has taken place in the month of April 2011 and service tax alongwith interest paid before audit was conducted and also filed ST 3 return therefore in terms of Section 73(3) even no show notice should have been issued, therefore consequent penalty is not imposable. He submits that service tax along with interest suo-moto deposited by the appellant before issuance of show cause notice, therefore penalty under Section 77 and 78 should not be imposed. He placed reliance on the board Circular No. 137/ 167/2006-CX.4 dated 3/10/2007 and also relied upon following judgments. (a) Vista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 . Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. (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 the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the rules made thereunder with intent to evade payment of service tax. In view of the above provisions when the assessee discharged the service tax alongwith interest without any contest and intimated same to the department, no show cause notice should have been issued. This position has been made clear by Board Circular No. 137/ 167/2006-CX.4 dated 3/10/2007 according to which proceeding shall stand concluded on payment of service tax and interest before issue of show cause notice. On going through the judgments relied upon by the Ld. Counsel it is observed that in case service tax alongwith interest was paid before issuance of show cause notice on their own by the assessee, penalty under section 76,77,78 of Finance Act, 1994 shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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