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2015 (8) TMI 448 - CESTAT NEW DELHI

2015 (8) TMI 448 - CESTAT NEW DELHI - TMI - Demand of service tax - Penalty u/s 76, 77 & 78 - Real estate service or service of construction of residential complexes - Held that:- While the Revenues contention that the respondent have not been able to show that the amount for which the said service tax demand was dropped by Commissioner (Appeals) related to construction of residential complex, the fact remains that the Revenue has not been able to show that the said amount pertained to provision .....

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jarat High Court judgement in the case of Ratnamani Metals & Tubes Ltd. Vs. CCE [2013 (12) TMI 1397 - GUJARAT HIGH COURT]. the Commissioner (Appeals) was justified in granting that option but the Commissioner (Appeals) was required to put a condition that the said reduced penalty will have to be deposited within 30 days of the receipt of the order in appeal and by not putting that condition the Commissioner (Appeals) has certainly gone beyond the scope under Section 78 and therefore the reductio .....

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h, Member (Technical) and Ms. Sulekha Beevi, C.S., Member (Judicial), JJ. For the Petitioner : Shri M.R. Sharma, D.R. For the Respondent : None ORDER Per R.K. Singh : Revenue is in appeal against order-in-appeal dated 25.5.2009 which upheld the service tax demand of ₹ 8,981/- along with interest and also penalty under Section 78 which was reduced to 25% of ₹ 8,981/- on the ground that demand of ₹ 8,981/- was paid before the issuance of Show Cause Notice but set aside the penalt .....

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dential complex service became taxable from 16.6.2005. The period of demand is 2001-2002 to 2004-2005. The Revenue is in appeal on the ground that : (i) The Commissioner (Appeals) has not given any basis as to how the said amount relates to construction of complex service as the respondent had not given any evidence to that effect; (ii) The observation of the Commissioner (Appeals) that penalty under Section 76 and 78 could not be imposed simultaneously was not legal and proper as during the rel .....

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is no representation on behalf of the respondent. Although on 3.6.2015 the case was adjourned to 10.7.2015 and the respondents representative Shri P.K. Mittal, ld. Advocate had noted the date. There is no request for any adjournment on behalf of the respondent either. However, in the memorandum of cross-objections the respondent has stated that it had deposited the service tax of ₹ 1,01,979/- and there was no wilful misstatement/suppression of fact on its part and therefore the penalty und .....

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ble to show that the amount for which the said service tax demand was dropped by Commissioner (Appeals) related to construction of residential complex, the fact remains that the Revenue has not been able to show that the said amount pertained to provision of Real Estate Agent service. It needs to be mentioned at this stage that the onus to establish that the amount pertained to Real Estate Agent service is on Revenue and that onus admittedly has not been discharged by Revenue. Therefore, Revenue .....

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of 2010 (decided on 12.7.2010) has in effect held that even if both these penalties were simultaneously imposable, once penalty under Section 78 was imposed, penalty under Section 76 need not be imposed. However, there is no two opinions about the imposability of penalty of ₹ 1000/- under Section 77 even when Section 78 penalty is imposed. Regarding Revenues contention that the Commissioner (Appeals) did not have the right to reduce the penalty under Section 78 to 25% of the demand, we fi .....

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