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TMI Blog2019 (1) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment is not allowed to go beyond the show cause notice, otherwise also section 73 sub-section (4) includes the cases where the short payment or non-payment by the reason of fraud, collusion, willful misstatement or suppression of facts - Mere non-payment or short payment for a particular period even till the time audit is not sufficient to prove the grave allegations as are contained in sub-section (4). It is rather the onus of Department to come forward to give some evidence of positive act on part of the appellant proving the appellants intend to evade the tax duty. Sub-section (4) of Section 73 is held not applicable to the present case - appeal allowed - decided in favor of appellant. - Service Tax Appeal No.ST/53469/2018-ST [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to the issuance of the show cause notice. It is further submitted that the said liability has also not been disputed. The short payment was on account of bonafide belief that since there is no establishment of the foreign service providers in India, there was no liability of that in alternative had tax been paid there was the option of cenvat credit and it would have been the Revenue neutral situation. It is only the penalty, which has been confirmed by the order under challenge that has been objected by the appellant vide the present appeal. Ld. Counsel has placed reliance upon Section 73 sub section (3) of the Finance Act, 1994 for the purpose. Reliance is placed on decision in the case of M/s.I2K2 Networks Pvt. Ltd. reported in 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid : Provided that the Central Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of thirty months referred to in sub- section (1) shall be counted from the date of receipt of such information of payment. Explanati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challan No. 00055 dated 18.03.2003. The interest has also been deposited vide challan No. 00003 dated 19.03.2003. The fact has very much been acknowledged in the show cause notice itself. The entire payment is thus before the issuance of show cause notice dated 16.04.2013. There is no reason to deny the benefit of sub section (3) of Section 73 of the Act to the appellant. 7. The Department has made emphasis on sub-section (4) thereof, but the perusal of show cause notice makes it clear that Section 73 to sub-section (4) has not been invoked. It has now been settled law that the Department is not allowed to go beyond the show cause notice, otherwise also section 73 sub-section (4) includes the cases where the short payment or non-payment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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