P. Anjani Kumar ORDER
P. Anjani Kumar, Member (T)
1. Brief issue to be decided in the instant case is as to whether the appellants are liable to pay penalty under Section 78 when the service tax was paid along with interest before the issuance of show-cause notice.
2. Brief facts of the case are that the appellants have registered themselves under Service Tax and GST as applicable during the relevant periods for payment of tax; on the conduct of audit of the accounts of the appellants during July 2019 to October 2019, the appellants have paid the service tax along with interest as pointed out by the audit; however, after lapse of around eight months, Revenue issued a show-cause notice dated 25.06.2020 to the appellants demanding service tax of Rs.65,34,464/- along with interest of Rs.44,20,422/-; Commissioner vide Order-in-Original dated 29.01.2021 confirmed the demands with interest and appropriated the amounts already paid by the appellants; he further imposed penalty of Rs.10,000/- under Section 77 and penalty of Rs.9,80,170/- under Section 78 of the Finance Act, 1994. Hence, this appeal.
3. Shri Krishna Rao, learned Counsel for the appellant, submits that the appellant has submitted detailed reply dated 29.09.2020 to the Commissioner stating inter alia that SCN is time-barred and extended period in terms of proviso to Section 73(1) of the Act is not invocable and that as per Section 73(3), SCN cannot be issued in respect of service tax and interest already paid by the appellant before the issuance of SCN. He submits that there was no suppression of fact with intent to evade payment of duty on the part of the appellant and no evidence to invoke extended period on that count has been adduced by the Department. Learned Counsel further submits that the period involved in the case is from April 2014 to June 2017; for some period, the SCN is beyond for years even with extended period; last date for issuance of SCN for the normal period also expired on 14.02.2020.
4. Learned Counsel submits that the impugned order has been passed with a pre-meditated mind without appreciating the facts of the case; non-consideration of points raised in the reply to the show- cause notice amounts to violation of principles of natural justice. He relies on the following cases:
• Micro Super Cables Pvt. Ltd. - MANU/DE/3258/2013 : 2013:DHC:4752-DB : 2013 (298) ELT 161 (Del.)
• Mediways Pharmaceuticals - MANU/CE/8559/2007 : 2007 (215) ELT 541 (Tri. Del.)
• Vasavadatta Cement - MANU/CB/7210/2006 : 2006 (206) ELT 592 (Tri. Bangalore)
• AI Enterprises-MANU/CC/0698/2001 : 2002 (147) ELT 642 (Tri. Chennai)
5. Learned Counsel further submits that they have maintained all the statutory records; they have submitted details/ documents as and when called for by the audit; the data required for issuance of show- cause notice was taken out from their statutory records only; under the circumstances, it cannot be alleged that the appellant has suppressed facts with intent to evade payment of duty. He relies on the following cases:
• Nizam Sugar Factory - MANU/SC/8820/2006 : 2006 (197) ELT 465 (SC);
• Reliance Life Insurance Co. Ltd. -