TMI Blog2017 (10) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... it would be proper to reduce the litigation confirming penalty to the extent of 25% of tax due imposed by adjudicating authority under Section 78 of the Finance Act, 1994 waiving balance amount of penalty of 75% payable under that section. So far as penalty under Section 77 is concerned, that is confirmed. Appeal allowed in part. - ST/89748/13 - A/89466/17/STB - Dated:- 23-8-2017 - Shri D.N. Panda, Judicial Member And Shri C.J. Mathew, Technical Member Shri Mayur Shroff, Advocate, for Appellant Shri M. Suresh, Dy. Commissioner (AR), for Respondent ORDER Per: D.N. Panda 4 days before the judgment dated 19/20 January, 2012 of Hon'ble High Court of Bombay in the case of Maharashtra Chamber of Housing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the aforesaid case was rendered on 19/20 January, 2012, assesses were in confusion as to leviability of Service Tax. In such circumstance, there should not be penalty on the appellant. 3. Revenue, on the other hand, says that appropriate adjudication has been made and without investigation being done, appellant could have escaped the tax liability. Accordingly levy of duty and penalty was justified. 4. Heard both sides and perused the records. 5. It is admitted fact on record that an Explanation reading as under was introduced to Section 65(105)(zzzh) of the Finance Act, 1994 by the Finance Act, 2010 w.e.f. 1.7.2010: - Explanation - For the purposes of this sub-clause, the construction of a new building which is intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75% payable under that section. 6. So far as penalty under Section 77 is concerned, for the reason stated above, that is confirmed. 7. Appellant says that taxes over and above the amount due have been paid in the course of investigation. Learned adjudicating authority shall verify such pleading and excess amount of taxes if any paid, shall be refunded to the appellant by 31.12.2017 subject to test of unjust enrichment. 8. Appellant prays that cum tax benefit may be granted. Appellant has not at all adduced any evidence to establish that invoices issued if any exhibits tax element included in the gross value of taxable service rendered. Accordingly, submission on such count fails. 9. In result, the appeal is partly allowed to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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