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TMI Blog2017 (12) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... g construction of residential complex. The purchasers are paying the cost of apartments in the different stages of construction services received by them but no service tax was paid by the Appellant. In view of above allegation, a show cause notice dt. 24.12.2012 was issued to the Appellant for demand of service tax alongwith interest and imposition of penalty. It was also proposed to appropriate the demand and interest against the amount already deposited by the Appellant. The demands alongwith interest were confirmed against Appellant vide Order dt. 26.07.2013 and penalties under section 78 (1) and 77 (1) were also imposed. Hence the present appeal. 2. Shri Vinay Jain, C.A. appearing for the Appellant submits that the constitutional vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore we do not consider the case to be of deliberate non-payment of service tax. We find that in case of Trinity Developer supra on identical facts, the Tribunal held as under: - 4. We have gone through the rival submission. We find that in the instant case the facts of the decision in the case of SP Associates squarely apply as the period and the nature of service is almost identical in the case of SP Associates, following has been observed: 5. I have carefully considered the submissions made by both the sides. I find that the issue relates to the penalties imposed under Section 77 & 78 of the Finance Act due to non-payment of service tax in time on the services of construction of complex. The appellant are not contesting the service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that penalty under similar fact is not imposable. Some of the judgments were relied upon by the appellant as cited in their submission made hereinabove. In the similar circumstances, the penalties should not be imposed invoking the provisions of Section 80 of the Act. The penalties imposed under Section 77 & 78 are waived, however the service tax and interest thereon paid by the appellant is upheld. I, therefore set aside the impugned order and allow the appeal of the appellant. 5. Relying on the aforesaid decision, penalties imposed under Section 77 & 7 of the Finance Act are waived by invoking Section 80 of the Finance Act. However, service tax and interest paid by the appellant is upheld. 6. We find that in the instant case the servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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