Custom, Excise & Service Tax Tribunal
M/S. Electro World vs Cce, Chandigarh on 16 June, 2010
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
West Block 2, R.K.Puram,
New Delhi-110066
COURT NO. II
Service Tax appeal No. 916 of 2009-SM
[Arising out of Order-in-Appeal No. 24/ST/CHD-II/2009 dated 7.9.2009 passed by the Commissioner (Appeals), Central Excise, Chandigarh-II]
M/s. Electro World Appellant
Reptd. by Shri Jitender Mohan, Consultant
Vs
CCE, Chandigarh Respondent
Reptd. by Shri S.K. Bhaskar, D.R.
Date of Hearing : 16th June, 2010
ORAL ORDER NO. ________________________
Per D.N. PANDA;
Learned Consultant submits that if short fall in payment of service tax is paid mitigating factor of sub-section (3) of Section 73 takes care of that case. The present appellant having paid short fall by 24th April 2006, there should not have been issuance of show cause notice for the said short fall on 28.11.2007. The action of the learned adjudicating authority, not being in consonance with the provision contained in Section 73(3) of Finance Act, 1994, this appellant had been directed to pay penalty under Section 76 of the Finance Act, 1994. In short, preliminary argument is that when no show cause notice was to be issued the question of penalty does not arise since adjudication is not intended by under Section 73(3) of the Finance Act, 1994.
2. Learned D.R. supports the authority below.
3. There is no dispute that the case is made for realization of short fall and only default period penalty has been called for under Section 76 of Finance Act, 1994. Statutory mandate being to relieve an assessee falling under Section 73(3) of Finance Act, 1994 from litigation without issuance of show cause notice, learned counsels averment is correct proposition of law. Therefore, he succeeds in appeal without facing any penal consequence under Section 76 of the Act. Consequently, appeal is allowed.
(D.N. PANDA) JUDICIAL MEMBER RK ??
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