TMI Blog2018 (11) TMI 1527X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1994 can be applied for waiver of penalty u/s 78 ibid of the Finance Act, 1994. Appeal allowed - decided in favor of appellant. - APPEAL NO: ST/88244/2018 - A/87968/2018 - Dated:- 20-11-2018 - Shri Ajay Sharma, Member (Judicial) Appellants: Ms. Kirti Bhoite, Advocate Respondent: Shri Dilip Shinde, Assistant Commissioner (AR) ORDER The only issue that arises for consideration in this appeal is whether the Appellant is liable to pay the penalty under Section 78 of the Finance Act, 1994. 2. The Appellant is a partnership firm engaged in construction of complex services and commercial or industrial construction service which has become taxable w.e.f. 01.07.2010. The period in question is from July, 2010 to M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 30094 16-11-2012 15,00,000 Service Tax 2 30030 01-12-2012 7,66,000 Service Tax 3 50041 21-02-2013 3,80,000 Interest 4 50041 21-02013 1,00,000 Late Fees for delay in filing ST-3 Returns She also contended that although the above mentioned facts are not in dispute but still the Revenue has imposed the penalty under Section 78 of the Finance Act, 1994. The Learned Authorised Representative appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 80 of the Finance Act, 1994 can be applied for waiver of penalty under Section 78 ibid of the Finance Act, 1994. 4. In a similar matter, this Tribunal in the matter of M/s Shree Anand Venkateswara Associates vs CCE, Pune-I, reported in 2016- TIOL-1803-CESTAT-Mum, has set aside the penalty under Section 78 and held as under: 7. I find that it is a fact that though there was clear provision of Service Tax liability on the Construction of Residential Complex Services but the Chamber of the Apex Body i.e. Maharashtra Chamber of Housing and Industry litigated the matter in the court of law. Therefore there was an uncertainty in the minds of the builders, whether during the pendency of the litigation, tax has to be paid. Moreove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore when show cause notice itself is not warranted, no adjudication is also required and therefore there is no question of imposition of any penalty. Taking into consideration the conduct of the appellant regarding immediate payment of Service Tax along with interest as well as the circumstances that the matter was under litigation in the court of law, the appellant has been able to show the reasonable cause for non-payment of Service Tax in time. It is also noted that the appellant did not try to hide anything, as the data of taxable value was correctly declared by the appellant did not try to hide account. Taking consideration of these factors, I am of the view that the appellant has made out the strong case for waiver of the penaltie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting (P) Limited vs. CCE, Hyderabad 2007-TIOL-773-CESTAT-BANG (i)Gujarat Ambuja Exports Limited vs. UOI [2012 (26) STR 165 (Guj)] (j)ABB Limited vs. CST Bangalore 2010-TIOL-1462- CESTAT-BANG (k)CBEC Circular F.No. 137/167/2006-CX.4 dated 03.10.2017 4.1 It is observed from the case records that appellant is a small time contractor and did not collect the service tax payable from its service recipients. The service tax was paid by the appellant, along with interest, by backward calculation from the total receipts of the contracted price. Learned Authorised Representative could not produce any document from the records that service tax payable was recovered by the appellant separately in the invoices and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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