S.S. Garg ORDER
S.S. Garg, Member (J)
1. The present appeal is directed against the impugned order dated 26.3.2018 passed by the Commissioner (A) whereby the Commissioner (A) has rejected the appeal of the appellant and upheld the penalty imposed under Section 78 of the Finance Act, 1994.
2. Briefly the facts of the case are that the appellants are engaged in providing services under the category of "mining of mineral service". The Joint Commissioner of Service Tax issued a show-cause notice dated 20.11.2015 alleging that during the audit of the assessee's record on reconciling the income shown in ST-3 returns and tax paid thereof with service tax liability as per the income shown in Trial Balance for the year 2014-15, it was found that service tax paid was lower than the service tax liability on the income reflected in the Trial Balance, resulting in short-payment of service tax. Further, it was noticed that the assessee had failed to file ST-3 returns for the period October 2014 to March 2015. The details of which are given herein below:
After following the due process, the original authority confirmed the demand of Rs. 24,71,701/- under proviso to Section 73(1) of the Finance Act and also appropriated the said amount paid by the assessee along with interest of Rs. 98,733/- and imposed equal penalty under Section 78 (1) of the Finance Act, 1994. Aggrieved by the said order, appellant filed appeal before the Commissioner (A), who rejected the appeal. Hence, the present appeal.
3. Heard both sides and perused the records.
4. The learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the impugned order is contrary to the binding judicial precedents on the same issue. The learned counsel further submitted that the entire service tax along with interest was paid before the issuance of show-cause notice and all the transactions have been recorded by the appellant in their books of accounts. He further submitted that the alleged short-payment of service tax of Rs. 24,71,701/- had already been quantified, accounted and included in the Trial Balance as on 31.3.2015 as service tax liability. He further submitted that it is well settled law that there cannot be any suppression if the transactions are recorded in the books of accounts. For this submission, he relied upon the following decisions.
• Garodia Special Steels Ltd. vs. CCE, Raigad: MANU/CM/0618/2014 : 2015 (38) STR 527 (Tri.-Mum.)
• Calderys India Refractories Ltd. vs. CCE, Aurangabad: MANU/CM/0356/2013 : 2014 (36) STR 102 (Tri.-Mumbai)
• Midnapore Tyre Retreading Factory vs. CCE, Haldia: MANU/CK/0163/2012 : 2013 (30) STR 569 (Tri.-Kol.)
• Moving Pixels Co. vs. CST, Ahmedabad: MANU/CS/0387/2013 : 2014 (34) STR 286 (Tri.-Ahmd.)
4.1 He further submitted that the issuance of show-cause notice dated 20.11.2015 is contrary to the provisions of Section 73(3) of the Finance Act, 1994. He referred to the provisions of Section 73(3) of which is reproduced herein below:
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