TMI Blog2019 (6) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... ORDER Above stated two appeals are taken together for decision since they are arising out of a common impugned Order-In-Original No.19/Comm/ST/GZB/2015-16 dated 29 March, 2016 passed by Commissioner, Customs, Central Excise Service Tax, Ghaziabad. 2. Brief facts of the case are that the appellants were engaged in providing taxable services falling under the category of Construction of Residential Complex . On 01 August, 2012 a team of officers of Service Tax visited the site office of the appellant situated at Raj Nagar Extension, Ghaziabad and conducted search. It was noticed that the appellant was engaged in construction of residential complexes under the names of Shalimar City, Officer City II, Studio One, Delhi 99 etc w.e.f. 01.07.2010 and were collecting service tax from the prospective buyers and were not depositing the same with the exchequer. Therefore, inquiries were conducted and on the basis of inquires a show cause notice dated 30 March, 2015 was issued invoking extended period of limitation and leveling allegation of suppression of facts from the knowledge of the Department and intention to evade payment of service tax. The relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Private Limited had delayed in payment of Service Tax amounting to ₹ 12,81,63,138/- in respect of amount received by them against booking/selling of Flats during the period July 2010 to March 2014, on or before the due date in contravention of the provisions of Section 68 of the Finance Act read with Rule 6 of Service Tax Rules, 2994, as discussed above. Further they had also failed to pay Service Tax amounting to ₹ 91,40,956/- on the advances received by them, from their various customers during the period July 2010 to March 2014. 25. Whereas, it appears that M/s MR Proview Real Tech Private Limited, Ghaziabad had willfully suppressed the fact that they were providing the taxable services and failed to declare the said activities and consideration received against the said services in the returns, as prescribed under Section 70 of the Act ibid as they did not file the said returns and thus escaped the proper assessment of service tax. It is on record that the party had applied for registration with the Service Tax Department on 27.06.2011. As such, it appears that M/s MR Proview Real Tech Private Limited, Ghaziabad done act of omission or commission so d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposited through cash and debit of cenvat account should not be appropriated, and why service tax of ₹ 91,40,956/- on advances received during the period from July 2010 to march 2014 should not be demanded and why interest amounting to ₹ 1,26,89,777/- on said service tax of around ₹ 12 crore should not be recovered from them. Further there were proposals for imposition of penalty under various sections. Through the said show cause notice the other appellant was also called upon to show cause as to why penalty should not be imposed upon him. 3. The said show cause notice was adjudicated through impugned Order-In-Original. As recorded in the said Order-in-Original the defence reply dated 05 May, 2015 filed by the appellants as reflected in Para 11 of Order-In-Original is as reproduced below:- 11. The party have filed their defence reply vide their letter dated 05/05/2015 and interalia submitted that the demand, if any is confirmed, should not be adjusted towards the amount of Service Tax already paid by them; that the advance received by them was not advance from customers but loans taken from various parties; that the interest amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e party under Section 77(1)(b) of Finance Act, 1994. (ix) I demand late fee of ₹ 1,55,000/- from the party under Rule 7(c) of Service Tax Rules, 1994 read with Section 70 of the Finance Act, 1994 for delayed submissions of ST-3 returns for the period 2010-11 to 2013-14. (x) I impose penalty of ₹ 1,00,000/- upon Sh.Rajeev Arora, Director, M/s.MR Proview Real Tech Private Limited, Ghaziabad under the provisions of Section 78A of the Finance Act, 1994. (xi) I impose penalty of ₹ 10,000/- upon Sh.Rajeev Arora, Director, M/s.MR Proview Real Tech Private Limited, Ghaziabad under the provisions of Section 77C of the Finance Act, 1994. Aggrieved by the said order appellant is before this Tribunal. 4. Heard learned advocate Shri Rajesh Chhibber appearing on behalf of the appellant. He has submitted as follows:- a. Service tax along with interest stood paid from 20 November, 2012 to 24 July, 2014. Against total tax liability of around ₹ 12.81 crore, tax of around ₹ 4.05 crores was discharged from cenvat account. The appellant also filed ST3 Returns, though belatedly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in calendar year 2013. Further service tax payable for the remaining period was also delayed by up to 243 days. Further, we note that interest payable was also not paid before issuance of show cause notice. Therefore, the contention of the learner counsel for the appellant that penalty should not be imposed under Section 78 where the tax along with interest was deposited before issuance of show cause notice is not applicable in the present case. We further note that none of the case laws relied upon by the appellant are applicable in the present case. The ruling by Hon ble Kerala High Court in the case of K.T. Murukan referred supra is not applicable in the present case. It was stated by petitioner before the Hon ble Kerala High Court that service tax amount had already been deducted by his principals and therefore he had no obligation to pay any service tax. We, therefore, hold that the said ruling by Hon ble Kerala High Court is not applicable in the present case. The learned counsel for appellant has also relied on Final Order dated 17 January, 2019 (referred supra) in the case of group companies of the appellant is also not applicable in the present case because in the said ca ..... 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