9911796707
TMI Blog2018 (9) TMI 1452X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants are engaged in providing services under the category of "mining of mineral service". The Joint Commissioner of Service Tax issued a show-cause notice dated 20.11.2015 alleging that during the audit of the assessee's record on reconciling the income shown in ST-3 returns and tax paid thereof with service tax liability as per the income shown in Trial Balance for the year 2014-15, it was found that service tax paid was lower than the service tax liability on the income reflected in the Trial Balance, resulting in short payment of service tax. Further, it was noticed that the assessee had failed to file ST-3 returns for the period October 2014 to March 2015. The details of which are given herein below: Income as per the Trial B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession if the transactions are recorded in the books of accounts. For this submission, he relied upon the following decisions. Garodia Special Steels Ltd. vs. CCE, Raigad: 2015 (38) STR 527 (Tri.-Mum.) Calderys India Refractories Ltd. vs. CCE, Aurangabad: 2014 (36) STR 102 (Tri.-Mumbai) Midnapore Tyre Retreading Factory vs. CCE, Haldia: 2013 (30) STR 569 (Tri.-Kol.) Moving Pixels Co. vs. CST, Ahmedabad: 2014 (34) STR 286 (Tri.-Ahmd.) 4.1 He further submitted that the issuance of show-cause notice dated 20.11.2015 is contrary to the provisions of Section 73(3) of the Finance Act, 1994. He referred to the provisions of Section 73(3) of which is reproduced herein below: "Section 73: (3) Where any service tax has not been levied or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olutions Ltd. reported in 2012 (26) STR 3 (Kar.) wherein it has been held that if the assessee pays the tax with interest, no notice shall be served. Further, in the case of CST , Bangalore vs. Master Kleen: 2012 (25) STR 439 (Kar.) wherein it has been held by the Hon'ble High Court of Karnataka that when the service tax and interest are paid, show-cause notice shall not be issued in terms of Section 73(3) of the Finance Act, 1994. 5. On the other hand, the learned AR defended the impugned order and submitted that there was suppression of facts on the part of the appellant. He further submitted that the learned Commissioner (A) has given reasons for imposing penalty under Section 78 and has relied upon the decision rendered in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 bona fidely believed that he is not liable to pay service tax but during the audit, the audit party 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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