2017 (12) TMI 1158 - AT - Service Tax

Constitutional validity of levy of service tax - construction of residential complex - Held that - Honble Mumbai High Court in case of Maharshtra Chamber of Housing Industry 2012 (1) TMI 98 - BOMBAY HIGH COURT held the levy to be constitutional. Thus following the judgment of Honble High Court, the Appellant is liable to pay service tax alongwith interest. In the instant case the service tax demand alongwith interest is payable by the Appellant and the same stands paid before issue of SCN - penalty set aside - appeal allowed in part.

Summary

Issues:
1. Allegation of non-payment of service tax by the Appellant for construction services.
2. Constitutional validity of the levy challenged.
3. Dispute regarding the levy on the service of construction of residential complex.
4. Imposition of penalties under Section 77 & 78 of the Finance Act.
5. Consideration of genuine reasons for non-payment of service tax.
6. Applicability of judgments in similar cases for penalty waiver.
7. Decision on service tax demand, interest, and penalties.

Analysis:
1. The case involved an allegation that the Appellant did not discharge the service tax liability for construction services of a residential complex after it became taxable from July 1, 2010. The department issued a show cause notice demanding service tax, interest, and penalties against the Appellant.

2. The Appellant challenged the constitutional validity of the levy, citing a judgment from the Hon'ble High Court of Mumbai upholding the levy. They also mentioned a Delhi High Court judgment where the levy was struck down. Additionally, they referred to other tribunal orders regarding confusion over the levy, asserting genuine reasons for non-payment.

3. The Tribunal considered the conflicting judgments but relied on the Hon'ble Mumbai High Court decision upholding the levy. However, due to the confusion surrounding the levy on construction services, the Tribunal found genuine reasons for non-payment of service tax, thereby not deeming it deliberate.

4. Regarding penalties under Section 77 & 78, the Tribunal noted that the Appellant had paid the service tax and interest before the show cause notice. Citing previous cases and considering the bona fide belief of the Appellant in non-payment due to the disputed levy, the Tribunal waived the penalties under Section 77 & 78 invoking Section 80 of the Finance Act.

5. Following the decision in a similar case, the Tribunal upheld the service tax demand and interest paid by the Appellant but set aside the penalty imposed against them. The service tax demand along with interest was confirmed, while penalties under Section 77 & 78 were waived based on the genuine belief of the Appellant.

6. Ultimately, the appeal was partly allowed, with the Tribunal upholding the service tax demand and interest payment by the Appellant but setting aside the penalties imposed. The decision was pronounced in court on December 7, 2017.