TMI Blog2018 (1) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... le property service . Therefore, DGCEI, issued SCN No.42 of 2012, dated 22/3/2012, demanding service tax of ₹ 23.34.424/- for the period 2007 to 2011 along with interest under proviso to Section 73 (1) and Section 75 of the Finance Act, 1994. SCN also proposed to imposed penalty under Sections 76, 77 and 78 of the Finance Act, 1994. The SCN was made answerable to the Additional Commissioner/Joint Commissioner of Service Tax, Chennai. 3. Vide O-I-O No.57 of 2014, dated 2/7/2014, the Additional Commissioner, confirmed the demand of service tax of ₹ 23,34,424/- along with interest under provisio to Section 73 92) and 75 of the Finance Act, 1994. The order also appropriated service tax amount of ₹ 23,34,424/- and interest of ₹ 9,95,980/- paid by the assessee. Further, the adjudicating authority had imposed penalty of ₹ 23,34,424/- and ₹ 10,000/- under Sections 78 and 77 of the Finance Act, 1994. 4. Aggrieved by the penalty imposed, the assessee preferred an appeal to the Commissioner (Appeals) vide Appeal No.191/2014 (MST) dated 24/9/2014. The Appellate Authority reduced the penalty imposed under Section 78 to 50% in respect of transaction for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd reiterated the stand that penalty under Section 78 of the Act is mandatory in nature. (i). K.Gopalakrishnan, Prop. Of Kamachi Mahal Vs. CCE, CESTAT, Chennai. (ii). UOI Vs. M/s. Dharmendra Textiles Processors and Ors {2008 (231) ELT 3 (SC) (iii). Commission of C.Ex.Vadodara Vs. Swathi Chemical Industries Ltd {2009 (248) ELT 421 Tri.Ahmd). (iv). Commission of C.Ex.Ludhiana Vs. Silver Oak Gardens Resort {2009 (9) STR 481 (Tri.Del.) (v). Mett. Macdonald Ltd., Vs. Commission of C.Ex.Jaipur {2006 (2) STR 524 (Tr.Del). (vi). A.K.Construction Vs. Commissioner of Customs C.Ex., Nagpur {2011 (22) STR 445 (T)}. 9. Heard Mr.A.P.Srinivas, learned counsel for the appellant and perused the materials available on record. 10. After considering the statutory provisions and submissions, the Commissioner of Service Tax, vide order, dated 2/7/2014, order in original, held thus:- 13. In the Show Cause Notice No.42/2012, dated 22/3/2012, it was proposed to appropriate Service Tax of ₹ 17,66,551/- and interest of ₹ 1,76,456/- paid by the assessee on 31/3/2011, 19/7/2011, 23/12/2011 14/1/2012. Further, it is seen from the records available that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contraventions; hence I do not propose any penalty under Section 76 of the Act. 16. Also I hold that the assessee is liable for penalty as provided under Section 77 of the Act for his failure to furnish returns within the prescribed time. I also hold that the assessee is liable to pay interest in terms of Section 75 of the Act. ORDER 17.1. In confirm the demand of Service tax amount of ₹ 23,34,424/- (Rupees Twenty three lakhs thirty four thousand four hundred and twenty four only), including education cesses from Shri P.S.Swaminathan payable for the period from 1/6/2007to 30/9/2011 under proviso to Section 73 (1) of the Finance Act, 1994 read with Section 73 (2) of Finance Act, 1994; 17.2. I appropriate the amount of ₹ 23,34,424/- (Rupee Twenty three lakhs thirty four thousand four hundred and twenty four only), including cesses paid by the assessee, as discussed in para 13, and adjust the same towards the demand made at clause 17.1 above; 17.3. I order the assessee to pay the interest on the demand confirmed at clause 17.2 under Section 75 of the Finance Act, 1994 17.4. I appropriate the interest amount of ₹ 9,95,980/- (Rupees Nin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to cases involving any of the above said ingredients namely fraud, collusion, wilful mis statement and suppression of fact or contravention of the provisions of Section 73 (3) are not applicable to this case. 10. Another plea of the appellants is that they are entitled for the benefit of Section 80 of the Act. It is observed that it is true that the issue of service tax on renting of immovable property had been the subject matter of debate and undergone several rounds of litigations. However, considering the facts and circumstances, the Government, in the Finance Act, 2012, had inserted sub-Section (2) to Section 80 of the Finance Act, 1994 and it reads as under:- (2) Notwithstanding anything contained in the provisions of Section 76 or Section 77 or Section 78, no penalty shall be imposable for failure to pay service tax payable, as on the 6th days of March, 2012, on the taxable service referred to in sub-clause (zzzz) of clause (105) of Section 65, subject to the condition that the amount of service tax along with interest is paid in full within a period of six months from the date on which the Finance Bill, 2012 receives the assent of the President. 11. The abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 78 is reduced to 50% in respect of the transaction for the period from 8/4/2011 to 30/9/2011 and in respect of the remaining period, the imposition of penalty does not require any interference. 14. In view of the foregoing discussions, the impugned order is upheld in its entirety except with the following modification in respect of imposition of penalty under Section 78 of the Act. (i). the penalty imposed under Section 78 of the Act, is upheld in respect of the transaction for the period from 1/6/2007 to 7/4/2011. (ii). The penalty imposed under Section 78 of the Act is reduced to 50% in respect of the transaction for the period from 8/4/2011 to 30/9/2011. 15. Appeal is disposed of in the aforesaid terms. 12. When the respondent filed, a further appeal CESTAT, Madras, on 10/10/2016 in Final order No.41836/2016, ordered as hereunder:- The only issue involved in this appeal is whether the penalty is leviable for delay in deposit of service tax relating to Renting of Immovable Property when legislature intended to grant immunity from prosecution against such delay due to interpretational difficulty arose prior to Home Solutions Retail Ltd., judgment ..... 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