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TMI Blog2018 (8) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... suppression with a mala fide intention. The assessee could have gained nothing since the entire amount could have been available to them as CENVAT credit. Since the entire exercise is revenue neutral, no mala fide can be attributed to them as there is nothing on record to show that they gained by not paying the Service Tax - penalty set aside. Appeal allowed - decided in favor of appellant. - Appeal No. ST/30501/2018 - Final Order No. A/30752/2018 - Dated:- 24-7-2018 - Mr. P. V. Subba Rao, Member ( Technical ) Shri G. Prahlad, Advocate for the Appellant Shri B. Guna Ranjan, Superintendent/DR for the Respondent ORDER [ Order Per : P. Venkata Subba Rao ] 1. This appeal is filed against Order-in-Appeal No. GUN-EX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards the same. He also imposed a penalty of ₹ 9,40,858/- under Sec.78 of Finance Act, 1994 for non payment of service tax by reason of suppression of facts of receiving taxable services and contravening provisions of Finance Act, 1994 and Rules made under there with an intent to evade payment of service tax. The appellant appealed to the first appellate authority who upheld the order in total and rejected the appeal. 5. Aggrieved by the impugned Order-in-Appeal the appellant filed this appeal under following grounds: (a) They have discharged the entire demand of service tax along with interest prior to the issue of show cause notice and hence, the demand is invalid under Sec.73(3) of the Finance Act, 1994. (b) The extende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on Sec.73(4A) and upheld the demand. As per Sec.73(4A), when any short payment has been noticed during the course of an audit/investigation or verification, but the true and complete details of transactions are available in the specified records, the person chargeable to service tax can pay the short paid service tax along with interest and penalty equal to 1% of such tax for each month during which the penalty continues up to a maximum of 25% of the tax amount. If he so pays then no show cause notice should be issued to him. 8. It is the assertion of the Learned Counsel that this section 73(4A) was omitted with effect from 14.05.2015. In their case although the relevant period was prior to this date, the show cause notice was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no dispute on the facts of the case that the appellant had received some services which were liable to service tax under reverse charge mechanism. When this was pointed out he paid service tax along with interest. It is also not in dispute that the service tax so paid could be claimed by them as CENVAT credit. In other words, the assessee could have paid service tax on one hand and could have got the credit of the same amount on the other. Therefore, I find it hard to understand how the assessee would have benefitted by not paying or short paying service tax when the entire amount is available to them as credit. I agree with the Departmental Representative that when service tax is short paid by not reflecting the full value in the ST3 retur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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