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TMI Blog2019 (2) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of residential complexes as well as renting of immovable property. The said construction activity has been brought under the service tax only w.e.f. 1.7.2010 by way of amendment in the existing Construction of Complex Services under section 65(105)(zzq) and (zzh) of the Finance Act, 1994 and the said amendment was challenged by the Maharashtra Chamber of Housing Industry before the Hon'ble High Court of Judicature at Bombay by way of writ petition on the ground that the activities by the builders cannot tantamount to provision of any taxable service and therefore no service tax was to be paid. Since there was confusion in the entire construction industry at that time therefore neither the Appellant collected service tax from the buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely after pointing out by the anti-evasion team, in the month of March, 2012 itself they deposited a sum of Rs. 19,79,927/- towards service tax despite the fact that they did not collect the said amount from their customers/buyers. According to him there was no suppression on the part of the appellant because at that relevant point of time there was confusion whether the builders are liable to pay the service tax in view of the amendment in the relevant sections of Finance Act and therefore the penalty u/s. 78 ibid cannot be imposed on the Appellant. The ld. Authorised Representative re-iterated the findings recorded in the impugned order and prayed for dismissal of the Appellant filed by the appellant. 4. I have heard ld. counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure." 5. It is not in dispute that when the amendment was carried out in the provision of service tax regarding construction activities, there was lot of confusion amongst the builders and the Maharashtra Chamber of Housing Industry even filed a writ petition before the Hon'ble High Court on which the Hon'ble High Court has passed the order on 23.7.2010 of no coercive steps against the builders for recovery of service tax. The said order of no coercive steps was in force upto January, 2012 when the said writ petition was finally decided by the Hon'ble High Court upholding the constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the writ petition which has been filed by them has been admitted and is still pending, hence they need not discharge any Service Tax liability. On perusal of the records, we find that factually appellants had filed writ petition on 8-9-2006 and it was admitted by the Hon'ble High Court on 29-3-2007. We find that the department was represented by the standing counsel before the Hon'ble High Court and department's Affidavit was filed on 29-9-2006, which admitted the contentions that the appellants were engaged in importing of rough diamonds and have paid commission to the brokers through whom they procured diamonds from DTC. If the department was aware of writ petition filed by the appellants and have filed an affidavit in September, 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded period of limitation are liable to be set aside and we do so to that extent the appeals are allowed. At the same time, the demands which are within the period of limitation from the date of issuance to the show cause notice needs to be upheld with interest and we do so, to that extent appeals are rejected. 10. This takes us to the issue of penalties imposed on the appellants under various provisions of the Finance Act, 1994. We find that the appellant need not be visited by penalties under the various sections of the Finance Act inasmuch, they could have entertained the bona fide belief as to that their writ petition may be decided in their favour. Invoking the provisions of Section 80 of the Finance Act, 1994, we find that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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