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TMI Blog2017 (11) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... that no penalties are imposable for this period. Tribunal in the case of SS Service providers [2016 (9) TMI 486 - CESTAT CHANDIGARH] has held that provisions of Section 73(4A) will be applicable even for the period prior to the issuance of Show-cause notice. If the ratio of the above decision is followed, then the department should have closed the proceedings as the appellant has paid the duty, interest and 1% penalty. Once the appellant pays duty along with interest, no show-cause notice should have been issued. Appeal allowed - decided in favor of appellant. - ST/23558/2014 - 22757/2017 - Dated:- 9-11-2017 - Shri S. S. Garg, Judicial Member Mr. Suresh Astekar, Advocate For the Appellant Mr. N. Jagadish, AR For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax returns also. The Officers of the Central Excise Department conducted investigations as regards the liability of the appellant to pay service tax and sought for the documents. The appellant furnished the copies of the balance sheets; project-wise ledger extracts for the period from October 2008 to March 2012; approved building plan of the residential projects and sample copies of construction agreement entered into with M/s. Vishwas Bawa Builders. On the advice of the officers of the Department, the appellant also took service tax registration on 16.6.2011. The appellant also calculated the service tax payable on the services rendered by him, the interest thereon and the penalty of 1% per month as prescribed in Section 73(4A) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant vide letter dated 17.4.2013 intimated the Department about the payments made by him towards service tax, interest and penalty and requested for closure of the proceedings under the provisions of Section 73(4A) of the Finance Act, 1994. On these allegations a show-cause notice dated 7.6.2013 was issued proposing to demand service tax and interest and to propose penalties under various provisions of law. After considering the submissions of the appellant, the learned Commissioner vide Order-in-Original dated 28.7.2014 has accepted part of the submissions made by the appellant and rejected their claim for closure of proceedings under the provisions of Section 73(4A) or Section 73(3) of the Finance Act, 1994. Further, besides con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roviso is only prospective and accordingly, he has held that no penalties are leviable for this period. He has also appropriated the part of the total amount paid by the appellant as 1% penalty for this purpose and the balance has been appropriated for penalty imposed separately under Section 78. He further submitted that the Department has accepted the penalty paid by the appellant under Section 4A and never advised the appellant to pay the penalty for the earlier period under Section 73(4). He further submitted that Tribunal in the case of S.S. Service Providers Vs. CCE: 2017 (47) STR 266 has categorically held that provisions of Section 73(4A) will be applicable even for the period prior to issuance of show-cause notice. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kforce Solutions Ltd.: 2012 (26) STR 3 (Kar.) CCE Vs. Manipal County: 2011 (9) TMI 1094 Karnataka High Court He further submitted that penalty imposed under Section 78 of the Finance Act is unsustainable as the Commissioner has imposed penalty equal to the amount of service tax of ₹ 5,19,689/- quantified for the period from 1.10.2008 to 7.4.2011 on the ground that the said demand has been confirmed under the proviso to Section 73(1) which attracts suppression of fact. He further submitted that none of the ingredients such as fraud, misstatement, suppression have been substantiated in the impugned order. He further submitted that the appellant could not have been fastened penalty of more than 25% of the service tax in que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prospective and also held that no penalties are imposable for this period. Further, I also find that this Tribunal in the case of SS Service providers cited supra has held that provisions of Section 73(4A) will be applicable even for the period prior to the issuance of Show-cause notice. If the ratio of the above decision is followed, then the department should have closed the proceedings as the appellant has paid the duty, interest and 1% penalty. Besides this, the department could have concluded the proceedings under Section 73(3) because the duty along with interest was paid before the issuance of show-cause notice and as per the various judgments relied upon by the appellant cited supra, including the judgment of Karnataka High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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