2017 (1) TMI 239

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..... ect of  interest and penalty  paid alongwith  service tax, since in respect of service tax paid on GTA service, they availed Cenvat credit,  they have not claimed refund.   The said refund was rejected on the ground that once the appellant have admittedly  paid service tax, interest and penalty, they have accepted the  liability  on their own.  Therefore, whether Service tax on the said service was payable  or not, amount paid voluntarily  cannot be refunded.  Aggrieved by the  Order-in-Original, appellant filed appeal before the Commissioner(Appeals), which came to be rejected,  therefore the appellant is before us. 2.  Shri. S.M. Sayyad Ld. Counsel  on b .....

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..... refund therefore interest and penalty  provided  under Section 73(4A)  is piggy back  which unavoidably  is payable by the assessee.  For this reason also  refund of interest and penalty paid by the appellant cannot be  refunded.  He relied upon judgment in case of Nukey Nufit Nakshtra Vs. Commissioner of Central Excise, Pune-II[2015-TIOL-607-CESTAT-MUM]. 4.  I have carefully considered the submissions made by both sides and perused the record. 5.  I find that  appellant  have consciously availed the option of Section 73(4A) which reproduced below: (4A) Notwithstanding anything contained in [sub-section (4)], where during the course of any audit, investigation or verificat .....

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..... voices recorded by the assessee in the books of account shall be considered as the specified records.] From the above provisions, it can be seen that appellant has option that if  any amount of service tax was not paid or short paid, same can be  paid suo moto  alongwith interest and penalty equal to one per cent.  In the same provision, it was provided once the  payment is made  the case shall stand closed thereafter it is not open to challenge either for the assessee or  for the department and department cannot issue show cause notice.  In such provision, after availing the option of the volunteer payment of service tax, interest and penalty appellant cannot claim that the payment was wrongly made .....

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