2018 (12) TMI 1098

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..... om reading of above Section 73 (4A) it is seen that it starts with the terms “not with-standing anything contained under 73 (4A) which deals with situation whether there is a fraud or collusion or willful mis-statement or suppression of fact etc, therefore, when the appellant have availed Section 73 (4A) and the case of non-payment of Service Tax stood concluded by making payment of Service Tax along with interest and 15% penalty, it cannot be said that there is suppression of fact on the part of the appellant. When there is no adjudication, whether there is fraud or collusion or willful mis statement or suppression of fact the same is not established, therefore, after making the payment under Section 73 (4A), the case stand concluded, .....

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..... l relying on the Commissioner (Appeals) order in the case of Shiv Lifters bearing Order In Appeal No. Vad-Excus-003-347-2016-17 dated 22.09.2016. The appellant being aggrieved by the said Order-in-Appeal filed the present appeal. 2. Shri. S.R. Dixit, Ld. Counsel appearing on behalf of the appellant submits that though the Commissioner (Appeals) has disallowed Cenvat in the case of Shiv Lifters but the said order of the Commissioner (Appeals) was decided by the Tribunal. This Tribunal in favour of assesse which is reported at Shiv Lifters Vs. C.C.E S.T, Vadodara-ll- 2017(12) TMI 93- CESTAT Ahmedabad. He further submits that in case of reverse charge payment of Service Tax, no malafide intention can be attributed to the assessee. In hi .....

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..... service tax. 5. From the plain reading of the above Rule 9(1)(bb) it is observed that the credit can be denied only if the short payment or non-payment for the reason of fraud or collusion or willful mis statement or suppression of fact or contravention of any of the provisions of the finance Act or Rules made there under with intent to evade payment of Service Tax. In the facts of the present case the appellant have paid the Service Tax along with 15% penalty and interest in terms of Section 73 (4A) it reads as under: In case where ingredients of fraud, collusion etc., as per section 73(4) exists, then the assesse can pay the service tax along with interest and penalty equal to 1 percent of the tax for each month for the period whi .....

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