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TMI Blog2016 (11) TMI 1292X X X X Extracts X X X X X X X X Extracts X X X X ..... ty informed him that he is liable to pay service tax, then he immediately paid the entire service tax along with interest. Except mere allegation of suppression, the Department did not bring any material on record to prove that there was suppression and concealment of facts to evade payment of tax. Consequently, in my opinion, the imposition of penalty under Section 78 of the Act is not justified and bad in law. Moreover, in the impugned order, the learned Commissioner (Appeals) has not recorded any finding on suppression of facts by the appellant with an intention to evade tax. In view of the above discussion, I set aside the impugned order. Appeal allowed - decided in favor of appellant-assessee. - ST/25283/2013-SM - Final Order No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 5000/- under Section 77 of the Finance Act, 1994 was imposed on the appellant. Aggrieved by the said order, the appellant filed appeal before the Commissioner (Appeals) who upheld the Order-in-Original except dropping the penalty imposed under Section 76 of the Finance Act, 1994. Aggrieved by the said order of the Commissioner (Appeal), the appellant is before this Tribunal. 3. Heard both the parties and perused the records. 4. The learned counsel for the appellant submitted that imposition of penalty under Section 78 of the Finance Act is contravention to the provisions of Section 73(3) of the Finance Act, 1994. He further submitted that service tax along with interest has already been paid by the appellant before issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the appellant is guilty of suppression of facts as he failed to inform the Department regarding availment of irregular Cenvat credit and, therefore, the lower authority has rightly imposed the penalty under Section 78 of the Finance Act, 1994. 7. After considering the submissions by both the parties and perusal of the provisions of Sections 73, 76 78 of the Finance Act, 1994 and the judgements relied upon by the appellant cited supra, I find that Section 73(3) is very clear as it says that if tax is paid along with interest before issuance of the show-cause notice, then in that case, show-cause notice shall not be issued. In this case, I find that the contention of the appellant that he bonafide believed that he is not liable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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