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TMI Blog2019 (1) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... Chennai and Coimbatore and are holders of Service Tax Registration. 1.2 During the course of audit of accounts by the Internal Audit Group of the Service Tax Commissionerate, it was noticed that the appellant had not paid service tax of Rs. 68,01,113/- collected from their customers for the period from September, 2007 to November, 2009 and also that during the period from July, 2005 to August, 2007 they had paid service tax belatedly and had not paid interest for such delayed payment. It was also noticed that the appellant had not filed the ST-3 returns from April, 2005 to September, 2009. On being pointed out by the Audit, the appellant had paid service tax of Rs. 67,62,623/- along with interest of Rs. 16,27,673/- on various dates. 1.3 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing, Ld. Advocates submitted that the appellant faced a huge cash flow problem as they had to pay salary, PF, ESI and other statutory dues to their staff. Further, that on being pointed out by the Audit group the appellant had immediately taken up steps and paid substantial dues along with interest before the issuance of the Show Cause Notice; that there was no mala fide intention on the part of the appellant and that the Department should not have issued the Show Cause Notice nearly two years later. 3.2 Ld. Advocates also placed reliance on the decisions of this Bench of the CESTAT in the cases of M/s. Dusters Total Solutions Services Pvt. Ltd. Vs. C.S.T., Chennai in Final Order No. 41943/2018 dated 06.07.2018, M/s. Jayem Automotive L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven priority to the day-to-day expenses including salary, electricity payment, etc., so as to sustain the business. Though they made efforts to raise funds to run the company, it did not materialize due to different reasons. They were also expecting refund from income tax to the tune of Rs. 133 lakhs which also did not fructify during the disputed period due to certain procedural and administrative reasons. Immediately after they got the refund from the Income Tax Department, the same was used to pay the service tax liability. 7.2 It can be seen from the contentions put forward as well as the records that the appellants, though initially were paying service tax and were filing returns properly, had defaulted payment of service tax and fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT, Madras, have categorically held that the assessee / respondent has discharged a portion of the interest liability prior to the issuance of the Show Cause Notice. 29. Perusal of the material on record discloses that the interest payable on the belated payment of service tax was Rs. 12,63,324/- and that even prior to the issuance of the Show Cause Notice, assessee / respondent paid interest amount of Rs. 5,23,151/-. The remaining amount of Rs. 7,40,163/- had been paid on 03.11.2009 immediately on receipt of Show Cause Notice dated 20.10.2009, i.e., within 13 days. 30. As per Section 80 of the Finance Act, 1994, notwithstanding anything contained in the provisions of Section 77 or 1st proviso to Section 78, no penalty shall be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the appellant has put forward reasonable cause for the failure to discharge the service tax liability. We therefore set aside the penalties imposed under Section 76 and 78 of the Finance Act, 1994 without interfering with the penalty imposed under Section 77 of the Act ibid. 9. The impugned Orders are modified to the extent of only setting aside the penalties imposed under Section 76 and 78 of the Act ibid. The appeals are partly allowed in above terms." 7. The appellant has given plausible explanations and the same have not been found to be wrong by the Revenue, nor is there any whisper suspecting the bona fides in the pleadings of the appellant by the Revenue. Viewed in this context, the above ruling of the Hon'ble High Court refe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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