TMI Blog2010 (12) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... to the classification of the service rendered by them - The fact that the issue was clarified in 2007 by the Board would support his contention that there was confusion as regards taxability of the service rendered by them during the relevant period covered by the impugned order - In the case of Pepsi Foods Ltd. reported in (2010 - TMI - 78728 - Supreme Court of India) – Accordingly it was held that penalties imposed on the appellant under Section 76 and 78 of Finance Act are set aside while confirming the demand for service tax with interest as not contested – Appeal is disposed of - ST/70/06 - A/1966/WZB/AHD/2010, Order Nos. M/2134/WZB/AHD/2010 - Dated:- 15-12-2010 - Mrs. Archana Wadhwa, Mr. B.S.V. Murthy For Appellant's:- Shri Jig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved design at their factory situated at Gandhinagar, Gujarat. The towers so manufactured are supplied to various customers like state electricity boards, Power Grid Corporation of India etc. The appellants also export the towers under claim of rebate/refund etc. Further, the appellants also stated that they supply other item of power transmission line like bolts, nuts, danger plates, phase plate, earthing wire, insulators, conductor wires etc. as per contractual terms. These items are procured from manufacturers or from open market. The appellants further clarified that as per Board Circular issued on 17.09.2004 it has been made clear that erection work which does not precede installation and commissioning of plant and machinery wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd activities of the appellants. From the investigations and scrutiny of the records maintained by the appellans, the Central Excise Officers formed a view that the activities of the appellants i.e. erection of transmission towers falls under the newly introduced taxable category of service Construction Services. However as confusion prevailed the appellants vide their letter dated 21.02.05, informed the department that they have made the payment of service tax under protest. 7. After issue of show cause notice on 02.06.05 and observance of principles of natural justice, the impugned order has been passed confirming the demand of service tax of Rs.1,13,60,559/- with interest as applicable. Further penalty of Rs.1,20,00,000/- h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant period covered by the impugned order. Further he relies upon the decision of the Larger Bench in the case of Pepsi Foods Ltd. reported in 2010-TIOL-109-SC-CX-LB to support his contention that no penalty could have been levied under Section 78 of Finance Act, 1994 when there was no allegation in the show cause notice of suppression of facts or misdeclaration and when there was no clear finding of suppression of facts or misdeclaration. Further he also relied upon the decision in the case of Shri Suthan Promoters reported in 2010 (19) STR 646 (Madras) to support his contention that no penalty can be imposed under Section 78 in the absence of specific finding with reference to suppression of facts of misdeclaration. Learned DR reite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the description consulting engineer or erection and commissioning. Although the department has disputed the contention of CERA, the fact remains that correspondence in this regard was going on between the department and KPTL as early as October 2004, so they were aware of the fact that some service tax liability could be upon them. It was therefore, incumbent upon them to be alert when the service of civil construction was introduced with effect from 10.09.2004. Moreover, the department has made considerable efforts through publicity in the media, through meetings and open house with the trade etc. to spread the message of service tax liability. To plead ignorance in the face of these factors is not acceptable. 10. The very fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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