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2019 (7) TMI 722 - AT - Service TaxWaiver of penalties imposed - Short payment of service tax - mis-match between the ledger and the bank statement of the respondent - the department was of the view that the service tax payable was ₹ 41,51,6210/- whereas the respondents have discharged service tax amounting to ₹ 29,77,682/- and interest of ₹ 3,67,932/- - demand of service tax alongwith interest and penalties - invocation of section 80 - wilful suppression of facts or not - intent to evade. HELD THAT:- It is true that the issue of service tax on builders was challenged before the Hon’ble High Court during the relevant period. It is also not disputed that as soon as the writ petition was rejected by the Hon’ble High Court, the respondent instantly took the service tax registration and paid the service tax with interest as per their calculation much before the issuance of show cause notice, although the same was short by few thousand rupees. But that itself shows that there is no mala fide intention to evade the Service Tax on the part of the respondent. There is no suppression of fact because the issue involved is of interpretation of law as the confusion was prevailing amongst the builders about the constitutional validity of the levy of service tax on Builders and Developers. Therefore benefit of doubt that existed in the mind of the assessee is to be given to the respondent. It constitutes a reasonable cause for not paying the service tax in view of Section 80 ibid which was in operation during the period in dispute. Therefore, the learned Commissioner was justified in interfering with the levy of penalty by setting aside the same. Appeal dismissed - decided against Revenue.
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