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TMI Blog2017 (5) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee and paid by the assessee before issuance of SCN, the provision of Section 73(3) of FA, 1994 gets attracted in situation like this - Provision of Section 73(3) categorically mandates that no SCN be issued to any assessee under sub section (1) in respect of amount so paid - penalty set aside - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... vider; it-is also noticed that while calculating the tax demand, the department (in the show cause notice) included the entire amount paid as Commission without extending cum. Tax price. The lower authorities have confirmed the demand by extending the benefit of cum. tax benefit and appropriating the amounts paid on 05.04.2011 alongwith interest. The Cd. Counsel submits that their contention in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so paid. This view of the Tribunal is in consonance with the orders of Hon'ble High Court of Karnataka in the case of CST, Bangalore Vs. C Ahead Info Technologies India Pvt. Ltd. [2017 (47)S.T.R. 125 (Kar)] wherein Hon'ble High Court held as under: "Sub-section (3) of Section 73 of the Finance Act, 1994, provides that, where any service tax has not been levied or paid or has been short-l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are precluded from issue of show cause notice. In these circumstances, the order passed by the Tribunal is strictly in accordance with the aforesaid statutory provision and do not suffer from any legal infirmity which calls for interference. No merit. Appeal stands dismissed." 5. In view of foregoing, find that the impugned order to the extent it upholds the penalty imposed, needs to be set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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