9911796707
TMI Blog2014 (12) TMI 1164X X X X Extracts X X X X X X X X Extracts X X X X ..... tax was not payable as Hon’ble Delhi High Court [2009 (4) TMI 14 - DELHI HIGH COURT] has stayed the provisions. It was through retrospective amendment only, tax was made applicable - appellants has made case for waiver of penalty in respect of service of renting of immovable property. However relating to failure to deposit of Service Tax in respect of Management, maintenance or repair services, no justification has come forward as it came out that levy of Service Tax was there w.e.f. 2001. However neither tax was paid nor information relating to disclosure of the availment of the credit in excess was mentioned in returns. Hon’ble High Court of Rajasthan’s judgment [2012 (11) TMI 955 - RAJASTHAN HIGH COURT] squarely fits into the facts of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty. She contended that they were under bona fide belief that no duty was leviable as per Hon'ble Delhi High Court's Judgment in case of Home Solution Retail India Ltd. v. Union of India, reported in 2009 (14) S.T.R. 433 (Del.) = 2009 (237) E.L.T. 209 (Del.). 3. As regards to other service of repair and maintenance service, it was submitted that they were under bona fide belief that they were not chargeable the Service Tax under these services viz; repair and maintenance service. However, she intimated that they have already deposited the Service Tax amounting to ₹ 11,34,998/- and interest leviable to both the services. Accordingly no penalty should be imposed on them under section 76 and 78. She invited attention to case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invited attention to the fact that appellants have not discharged the leviable Service Tax for the services rendered during the period from 2005-2007. He referred to para 5 & 6 where they have deposited the duty on repair and maintenance for the period from 10-4-2005 to 13-5-2007 for rendering service of renting of immovable property. Service Tax amounting to ₹ 6,84,250/- for the period July 2007 to March 2010 has been paid. 6. Regarding imposition of penalty, Ld. DR stated that appellant have failed to deposit Service Tax in respect of 'Management, Maintenance or Repair Services' and 'Renting of Immovable Property'. Regarding appellants' relying upon Hon'ble Punjab and Haryana High Court's judgement in the case of First Flight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon'ble Tribunal's Order para 7 was referred. 9. Heard both sides and perused records. 10. Issue involved for consideration is whether penal action is invited under Section 76 and Section 78 of the Finance Act, 1994 in view of facts stated above. Appellants have deposited Service Tax on being pointed out by the department. Regarding payment of Service Tax on rendering service of renting of immovable property, they expressed that they had bona fide belief that tax was not payable as Hon'ble Delhi High Court has stayed the provisions. It was through retrospective amendment only, tax was made applicable. I find force in their submission. 11. Regarding non-payment of Service Tax on maintenance and repair, it is noted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the return or made through a letter accompanying the return. Once the appellant has claimed that Service Tax has been paid in accordance with the law and this is not paid, that imputes the appellant to the charge. Show view brings harmony in construction of law ad for effective implementation thereof in respect of self-assessment procedure. The act of false declaration can be remedied by levy of penalty. Thus penalty levied under Section 76 is confirmed and so far as penalty under Section 78 is concerned that shall be limited to the quantum of tax payable upon re-computation as directed aforesaid. So far as levy of penalty is concerned the case of the appellant is that Cenvat credit of a higher amount was unduly claimed. Sample copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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