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Shyama Builders Versus Commissioner of Central Excise, Pune-I

2016 (1) TMI 886 - CESTAT MUMBAI

Levy of penalty - appellant has discharged 25% of the amount of service tax on 05/03/2014, while they received the order-in-original on 28/01/2014 - advance payment for construction work - appellant has already discharged service tax liability before issuance of the show cause notice and also discharged interest liability on issuance of the show cause notice. - Held that:- the period for discharging service tax and penalty has been extended to 90 days if the value of the service tax is less than .....

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ainst Order-in-Appeal No: PUN-EXCUS-001-APP-245-14-15 dated 19/03/2015 passed by the Commissioner of Central Excise (Appeals), Pune-I. 2. Heard both the sides and perused the records. The issue involved in this case is regarding setting aside of penalties imposed by the adjudicating authority and upheld by the first appellate authority. 3. The relevant facts that arise for consideration are, the appellant is a builder and for the period 2010-11 and 2011-12 they received some advance payment for .....

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ntion for setting aside the penalty, he submits that the explanation to the definition of 'residential complex' was inserted on 01/07/2010 and the said definition which created liability for service tax on advances received was taken up by the Association of Builders before the Hon'ble High Court of Bombay and Hon'ble High Court decided the issue against the Association and held that the said explanation will be applicable and tax liability needs to be discharged and the said jud .....

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the amount of service tax as penalty in accordance with the provisions of Section 78, more, more specifically 4 th proviso of Section 78(1) of the Finance Act, 1994, as the appellant has paid 25% of the amount as penalty on 05/03/2014, which is within 90 days of receipt of the order-in-original. On a specific query from the bench, the learned counsel submits that he is not contesting the grounds of appeal relating to cum-tax benefit to be extended to the appellant. 5. On other hand, learned Depa .....

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se of Bharat Cam Industries vs. Commissioner of Central Excise in appeal No. ST/85409/2015, Order No. A/3220/15/SMB dated 11/09/2015 will be applicable in the facts of this case as 25% of the amount has been discharged as penalty and, therefore, provisions of Section 80 need not be invoked. 6. I have considered the submissions and perused the records. Since the appellant is not contesting the issue on cum-tax benefit, I take up the appeal for disposal only on the issue of penalties imposed. I fi .....

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ically 2 nd and 4 th proviso to Section 78 (1) of the Finance Act, 1994 would be applicable in this case as the appellant has discharged 25% of the amount of service tax on 05/03/2014, while they received the order-in-original on 28/01/2014. Section 78 of the Finance Act, 1994, during the relevant period is reproduced. "78. Penalty for suppressing value of taxable service:- (1) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, .....

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