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TMI Blog2019 (11) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... notice to defend themselves against the proposal of imposition of penalty. Therefore, penalties imposed are not sustainable. Invocation of proviso to sub-Section (1) of Section 73 of Finance Act, 1994 - HELD THAT:- The appellant had filed ST-3 also and the whole transaction was reflected in the balance sheet. Therefore, there is no element of suppression - the invocation of proviso to sub-Section (1) of Section 73 of Finance Act, 1994 was not justified in the present case. Therefore, the finding of the learned Commissioner (Appeal) that provisions of sub-Section (3) of Section 73 of Finance Act, 1994 were not applicable in the present case is not sustainable. The penalty imposed is set aside and without interfering with the voluntary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue that the appellant paid an amount of ₹ 1,97,54,700/- on account of Royalty of Training and another amount of ₹ 1,48,35,393/- as reimbursement for business and travels. The appellant paid service tax of ₹ 24,93,946/- along with interest of ₹ 4,67,222/- on 06.11.2008 and informed Revenue that the same was not liable to service tax as the expenses were reimbursable. When the appellant received notice for personal hearing the appellant intimated Revenue that referred Show Cause Notice dated 28.09.2011 was not served upon them, and therefore, they were not in a position to submit their defence. In spite of that ex-parte Order-in-Original dated 05.03.2013 was passed confirming the demand of service tax of ₹ 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Act, 1944 made applicable to service tax matters. They submitted that the principle of natural justice were violated in imposing penalty against them since they were not put on notice to defend against the proposal of imposition of penalty. They relied on order of Hon ble High Court of Madras in the case of OSA Shipping Pvt. Ltd. vs. Commissioner of Central Excise, Chennai 2015 (325) ELT 486 (Mad.). Learned Counsel submitted that Hon ble Madras High Court had held that since the Department could not be produced acknowledgement of having served order on the appellant to the said appeal it was held that in terms of Section 37 C of Central Excise Act, 1944, the service of order was not complete. Further, he has submitted that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed post shows that under Registered post the pre paid post or the mail is accepted by the Post Office under a receipt, official record/ receipt that the letter or the mail has been posted for delivery by the Post Office and it delivers such letter or mail to the addressee or his/her/its agent under proper receipt by way of taking signature, stamp, etc., and in case of non-delivery of such post of mail upon the person to whom it was meant the said post or mail is returned back to its sender after mentioning the causes of its non-delivery that too under proper receipt. After examining the nature and characteristics of the Registered post I proceed to examine the nature and characteristic of speed post. The speed post is special mail d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 37 C, ibid. I, therefore, hold that delivery of notice, etc., through speed post is proper delivery or service of notice in the true meaning of the provisions of Section 37 C, ibid. The above views also find support from the Section 27 of the General Clauses Act, 1897. I observe the adjudicating authority provided ample opportunities of personal hearing but the appellants did not attend on the pretext of delivery of show cause notice through speed post is improper service of notice. Thus, the appellant s contention that ex-parte order passed is in violation of natural justice is devoid of merit. The ratio of judgment in the case of Amidev Agro Private Limited vs. U.O.I. 2012 (279) ELT 353 is not applicable in the appellants case as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x payable by the appellant. Therefore, it is clear that the appellant had filed ST-3 also and the whole transaction was reflected in the balance sheet. Therefore, we note that there is no element of suppression. We, therefore, held that invocation of proviso to sub-Section (1) of Section 73 of Finance Act, 1994 was not justified in the present case. Therefore, the finding of the learned Commissioner (Appeal) that provisions of sub-Section (3) of Section 73 of Finance Act, 1994 were not applicable in the present case is not sustainable. 8. In view of above findings as recorded above, we set aside the penalty imposed and without interfering with the voluntary deposit of service tax along with interest we allow the appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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