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TMI Blog2015 (9) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... after referred to as "the applicant") are holding service tax registration no. AAIFF0062DSD001 under the categories of 'Construction of Residential Complex Service'. 2.2 They are engaged in providing taxable services viz. "Construction of Residential Complex Service". 2.3 On the basis of intelligence collected that M/s. Essen Group who are engaged in providing taxable service viz. Construction of Residential Complex are not paying Service Tax in respect of such activity, an enquiry was initiated by the officers of Anti-Evasion, Central Excise, Pune-I Commissionerate on 27-9-2011, which revealed that M/s. Aishwaryam Ventures, one of the firms of the said group, have obtained the Service Tax registration but not paying the Service Tax properly for the taxable services being provided by them under the category of "Construction of Residential Complex Service", which became taxable service w.e.f. 1-7-2010, under the provisions of Chapter V of Finance Act, 1994. The assessee had obtained the service tax registration only on 19-7-2010 having STC No. AAIFP0062DSD001. 2.4 The enquiries conducted in the matter revealed the following : (a) M/s. Aishw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnexure-A, it appears that the service tax liability for the quarter ending December, 2010 to Q.E. September, 2011 i.e. for the period prior to enquiry, which works out to Rs. 41,72,645/- was paid by them during the period from 29-9-2011 to 20-1-2012, i.e. only subsequent to the initiation of investigation/enquiry conducted by the department, as mentioned in para 2 above. Further the interest amounting to Rs. 3,57,313/- is also paid by the assessee (Rs. 84,023/- paid on 29-3-2012 and Rs. 2,73,290/- paid on 1-6-2013). 2.7 They were issued Show Cause Notice as to why the "Construction of Residential Complex Service" provided by them to various customers during the period from 1-7-2010 to 30-9-2011, should not be treated as taxable services rendered under The category of "Construction of Residential Complex Service" by a Builder, as defined under Section 65(105)(zzzh) of the Act; (ii) Service Tax amounting to Rs. 41,72,645/-, as detailed in Annexure-A to this notice, which is liable to be paid by them on the services of Construction of Residential Complex Service - for the Quarter Ending December, 2010 to Quarter Ending September, 2011, should not be demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; Any other and further orders or direction be issued as may be deemed fit by this Hon'ble Commission so as to meet the ends of justice. Admission of the Application 4. A notice under Section 32F(1) of the Act was issued to the applicant on 27-11-2013. In response, the applicant submitted their replies dated 11-12-2013 stating that their applications may be allowed to be proceeded for settlement as they fulfill the conditions stipulated in Section 32E of the Act. Their applications were allowed to be proceeded with on 24-1-2014 on file. Jurisdictional Commissioner's Report 5.1 The Commissioner, Central Excise Pune has vide their report dated 1-4-2014 informed that : (a) They have not paid Service tax during the relevant period of providing this taxable service, properly, till the time of enquiry by the department; the service tax liability for the Quarter Ending December, 2010 to Q.E. September, 2011 i.e. for the period prior to enquiry, which works out to Rs. 41,72,645/-, was paid by them during the period from 29-9-2011 to 20-1-2012, i.e. only subsequent to the initiation of investigation/enquiry conducted by the department, as mentioned i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. As the matter has been under dispute in a number of Judicial Forum, the applicant did not pay Service Tax or filed returns after obtaining registration on 19th July, 2010. (iii) The SCN demanding Service Tax of Rs. 41,72,645/- was issued on 25th July, 2013. and consequent to the starting of investigation on 27-9-2011. The Tax returns in the case were filed on 4th February, 2012. 7. The ld. Advocate argued that since the entire short levy pointed out was paid along with interest of Rs. 3,57,313/-, the SCN in this case should not have been issued in terms of provisions of Section 73(2) of the Finance Act, 1994. 8. It was also argued that no penalty can be imposed in the above circumstances in view of the existing Judicial judgments as cited below:- (a) C.C.E. & ST., LTU, Bangalore v. Adecco Flexione Workforce Solutions Ltd., Karnataka High Court - 2012 (26) S.T.R. 3 (Kar.). (b) Commissioner of C. Excise, Bangalore-I v. Geneva Fine Punch Enclosures Ltd. - 2011 (267)E.L.T. 481 (Kar.) (c) Commissioner of Service Tax, Bangalore v. Master Kleen, Karnataka High Court [2012 (25) S.T.R. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra Chamber of Housing Industry before the Hon'ble High Court of Bombay. Similar writ petitions were filed in other High Courts as well. The taxability of the above service was therefore not clear during the relevant period. However, notwithstanding the above, the applicant obtained Service Tax registration on 19-7-10. An amount of Rs. 41,72,645/- towards service tax for the period July, 2010 to September, 2011 was paid by them between 5-10-10 to 28-1-12. It was further stated that since October, 2011 the applicant was discharging their service tax liability regularly and in case of any delay in payment same was discharged with interest at applicable rate. 10.4 It is observed that because of uncertainty about the taxability of the said service during the relevant period, the applicant failed to obtain registration and file ST-3 Returns in the prescribed manner which was an essential condition for the admissibility of an application under Section 32-E Proviso (a) of the Central Excise Act, 1944. The said proviso (a) to Section 32-E was, however, amended as under with effect from 6, 8, 14 vide Finance Act, 2014. "provided that no such application shall be made unless - (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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