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TMI Blog2018 (11) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... n the nature of compensation for the delay in payment, was also paid after issuance of SCN and much before issuing the Order-in-Original. The conduct of the appellant in paying up service tax and interest, and the categoric finding of the Commissioner that there is no intention to evade tax, persuades us to hold that appellant has established reasonable cause for invoking Section 80 of the Act ibid. The penalty imposed is not proper and therefore by using discretion under Section 80 of the Finance Act, the same is set aside - demand with ineterst upheld - appeal allowed in part. - ST/00070/2012 - Final Order No. 42929/2018 - Dated:- 10-7-2018 - Shri Madhu Mohan Damodhar, Member (Technical) and Shri P. Dinesha, Member (Judicial) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 76 78 of the Finance Act, 1994 for default in payment of service tax within the due dates. The appellant vide their reply dated 10.05.2011 stated by relying on Board s Circular F. No. 137/167/2006-CX-4 dated 03.10.2007 that the Show Cause Notice should not have been issued as the service tax was paid much before the date of issuance of Show Cause Notice, and further stated that since they had paid their dues with interest and also filed ST-3 returns before the issuance of Show Cause Notice, they are not liable to pay penalty under Section 73(3) of the Finance Act, 1994. The Commissioner of Service Tax, Chennai however passed the impugned Order-in-Original No. 34/2011 dated 28.09.2011 confirming the above amount of tax and imposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chennai) in support of his contentions. 5. We have heard the rival contentions, perused the documents placed on record and have also gone through the judgements referred to during the course of arguments. 6. The issue involved is only in with regard to imposition of penalty. On a perusal of the Order of this Bench in the case of M/s. Dusters Total Solutions Services Pvt. Ltd. (supra), we find that this Bench after considering the rival contentions has ruled as under : 5.8 Once it has been held that service tax has not been paid on account of fraud or collusion or wilful misstatement or suppression of facts, etc., with intention to evade payment of service tax, the provisions of Section 73(3) of the Act would hold sway in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact which has been taken cognizance of and found correct by the adjudicating authority also. The Department has also not called any evidence that the appellant had sufficient financial reserves and were not monetarily strained. In any case, one must take into account the mitigating factor that appellants have paid up the tax liability in full, although belatedly. The assessee who has paid up the tax liability, even if belatedly, should surely be treated differently and on a different pedestal than another assessee who has not discharged such liability even after being pointed out by the Department and instead, has chosen to litigate the matter. It has also to be considered that in case there is a positive finding under Section 78 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an assessee who does not make payments at all before issue of SCN. No benefit would accrue to an assessee who makes such payment if this argument is accepted. C.B.E. C. vide letter F. No. 137/167/2006-CX-4, dated 3-10-2007 has clarified that Section 73(3) cannot be interpreted in the way it is canvassed now by Revenue. However, since there is decision of the Single Member of the Tribunal in another case, a final view in this matter can be taken in another case where a Larger Bench may be deciding the matter. 5.10 The appellant has paid up the service tax belatedly before issuance of SCN. The interest which is in the nature of compensation for the delay in payment, was also paid after issuance of SCN and much before issuing the O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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