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TMI Blog2016 (9) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... on 68 has not credited the same. I find that the appellants herein are contesting the demand and have paid the amount only on being pointed out by the department during audit. I find that there is no allegation in the Show Cause Notice to demand or appropriate the amount paid by the appellants. I also find that the finding of the adjudicating authority that the appellants had not disputed the tax liability is also not correct. Hence the demand of interest under Section 75 cannot be fastened on the appellants. Accordingly, penalty under Section 77(2) also fails. Invokation of extended period of limitation - period of dispute is from October 2006 to July 2008 - Show Cause Notice was issued only on 06.08.2010 - Held that:- the Show Cause No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) rejected the same on the ground that when any tax liability is deferred and subsequently discharged, then interest should be discharged for the belated period. Hence this appeal. 2. The learned Counsel for the appellant submitted that they consistently disputed the levy of service tax and the payment was not made voluntarily but was made on the compulsion of the department during the course of scrutiny. The payment was made only when pointed out by the department and the same cannot be treated as payment made voluntarily by the appellants themselves. The counsel also submitted that when the assessee paid the service tax along with interest either on his own account or on being pointed out by the department, no show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision (supra) relied by Revenue itself makes it clearly that interest can be levied only when the duty is determined and confirmed. In this regard, he referred to para-3 of the said decision. In the instant case, there is nothing available on record to establish that appellant it liable to pay tax and there is no SCN issued. 5. Heard both sides. The issue to be decided in this case is as to whether interest can be levied when tax liability has not been fastened on the appellants. I note that the show cause notice proposes to recover interest under Section 75 and penalty under Section 77(2) on the amount already paid by the appellant. Section 75 can be invoked only when the person liable to pay service tax in accordance with the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriation in the order. Therefore, the said decision is not applicable to the facts of this case. Similarly, Revenue reliance on the decision of Delhi Bench of the Tribunal in the case of Abhinav Industries Vs CCE Jaipur (supra) which has relied upon the Bombay High Court judgement (supra) is of no relevance to this case and hence not applicable. 5. I also find that the period of dispute in the instant case is from October 2006 to July 2008. However, the Show Cause Notice was issued only on 06.08.2010. I find that the Show Cause Notice does not invoke provision of Section 73 to invoke the extended period of limitation and the case of the department fails on that ground alone. The Hon'ble Supreme Court in the case of Padmini Products ..... X X X X Extracts X X X X X X X X Extracts X X X X
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