TMI Blog2015 (5) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... ey have filed nil return for the said period mentioning that they have not rendered any taxable service. Whereas, it is established that the appellants rendered the service of construction of residential complexes Blue Mount and for the East Crust received the payment from the clients. Therefore, the appellants cannot plead for innocence for invoking Section 80 - Following decision of Kedia Business Centre [2009 (3) TMI 85 - CESTAT MUMBAI] - Decided against assessee. - ST/357/2010 - Final Order No. 40447 / 2015 - Dated:- 17-3-2015 - Hon ble Shri R. Periasami, Technical Member,J. For the Appellant : Shri S. Ramachandra Rao, CA, For the Respondent : Shri M. Rammohan Rao, DC (AR) ORDER The present appeal has been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board s Circular they were under the bonafide belief that service tax is not payable on the construction service undertaken towards construction of residential complex. He further submits that immediately after pointed out by the Department, they paid the service tax amount of ₹ 22,30,957/- along with interest before issue of show cause notice and the remaining amount was paid before the adjudication order and also paid the interest thereof. He pleaded for waiver of penalty under Section 80 of the Act. He relied upon the following case laws in support of his contention. 1. Boving Fouress Ltd. Vs. CCE, Chennai 2006 (202) ELT 389 (S.C.) 2. Indian Oil Corporation Ltd. Vs. Collector of C.Ex 2006 (202) ELT 37 (S.C.) 3. Magus Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is clearly brought out in the show cause notice as well as in the adjudication order, the appellants have collected service tax amount on the taxable service rendered by them and failed to remit the same and also suppressed the facts in their half yearly return filed for the period September, 2005. They have filed nil return for the said period mentioning that they have not rendered any taxable service. Whereas, it is established that the appellants rendered the service of construction of residential complexes Blue Mount and for the East Crust received the payment from the clients. The appellant s only contention is that they have paid the entire duty and the interest before adjudication. It is not the case of the appellants that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal. The Hon ble High Court held that where the entire duty liability was discharged prior to issuance of show-cause notice, no penalty was to be imposed on the assessee under Section 11AC of the Central Excise Act. Some of the decisions of the Tribunal cited by the counsel are also to the same effect. A few decisions of the Tribunal are to the effect that any penalty under Sections 76/77/78 of the Finance Act, 1994 is not imposable on a service-provider who paid service tax prior to issue of show-cause notice. The learned SDR has opposed the above argument of the counsel, on the strength of the Hon ble Supreme Court s decision in UOI Ors. v. Dharamendra Textile Processors Ors. - 2008 (231) E.L.T. 3 (S.C.). He has also pointe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Act and Section 78 of the Finance Act, 1994) deal with penal liability of an assessee who has failed to discharge tax liability in comparable circumstances. However, I am not inclined to apply the above principle to the penalties under Section 76 and 77 of the Finance Act, 1994. Insofar as those penalties are concerned, some of the decisions cited by the learned counsel are found to be operating in favour of the appellant. In the case of Sieger Spintech Equipments Pvt. Ltd. v. CCE, Coimbatore - 2006 (3) S.T.R. 736 (Tri.-Chennai), the appellants had paid service tax before the issue of show-cause notice and, therefore, penalties imposed on them under Sections 76 and 77 were set aside. The penalty imposed under Section 76 of the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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