TMI Blog2011 (7) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... x before Show Cause Notice - lot of confusion in law at the inception stage on taxability of the service provided by contractors - held that:- Ld. adjudicating authority has rightly considered the defence plea in relation to penalty and waived the same invoking section 80 of the Act for which he did not levy penalty u/s 76, 77 & 78 of the Act on the demand confirmed by him. The appellant has substance in his argument and waiver of penalty imposed by the first appellate authority on the amount of demand confirmed in adjudication is warranted. That is ordered accordingly. - ST/1622 OF 2010 - ST/331 OF 2011 - Dated:- 1-7-2011 - D.N. PANDA, MATHEW JOHN, JJ. Abhishek Jaju for the Appellant. Sonal Bajaj for the Respondent. ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as defined by section 65(91A) of the Finance Act, 1994 having been constructed by the appellant that shall be chargeable to tax. Such a view is erroneous since condition prescribed by that section was not tested by the ld. appellate authority. Therefore, Appellant prayed that not only stay application may be disposed dispensing pre-deposit but appeal may also be disposed restoring adjudication. 2. Ld. DR supports the first appellate order saying that when residential complex was constructed, there shall be liability to service tax. 3.1 Heard both sides and perused the records. Both stay application and appeal were taken up for disposal by this common order since the levy was limited to a small tax demand of Rs. 2,51,648/-. When we looke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law at the inception stage on taxability of the service provided by contractors, the appellant was reasonably dealt in Adjudication since registration was sought by the Appellant when he came to know about his liability. The appellate authority also noticed that substantial amount was paid by Appellant with interest even before issuance of Show Cause Notice. Adjudicating Authority noticed that there was no ground to suspect mala fide intention of the appellant to evade payment of tax. He found sufficient ground to invoke section 80 for consideration of the submissions of the appellant and found reasonable cause to waive penalty. Ld. Appellate Authority did not discard finding of Ld. Adjudicating Authority in absence of mala fide intention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relation to penalty and waived the same invoking section 80 of the Act for which he did not levy penalty u/s 76, 77 78 of the Act on the demand confirmed by him. The appellant has substance in his argument and waiver of penalty imposed by the first appellate authority on the amount of demand confirmed in adjudication is warranted. That is ordered accordingly. 5. In the result, the Stay Application is disposed, appeal is partly allowed to the extent indicated above, waiving penalty imposed by first appellate order on the demand of Rs. 29,12,162/-. Ld. Appellate Authority shall consider the issue of leviability of the additional tax demand of Rs. 2,51,648/- and penalty, if any imposable thereon granting fair opportunity of hearing to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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