2016 (2) TMI 690

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..... e is clearly unsustainable and therefore same is set aside. - Decided in favor of assessee.
P S Pruthi, Member (T) And Ramesh Nair, (J) For the Appellant : Shri S S Gupta, C.A. alongwith Shri. Archit Agarwal, C. A. For the Respondent : Shri Sanjeev R Nair, Examiner ( A.R. ) ORDER Per Ramesh Nair This appeal is directed against Order-in-Original No. 418/33/V/2011/COMMR/KS/ST dated 29/11/2011 passed by the Commissioner of Service Tax, Mumbai- V, wherein Ld. Commissioner has confirmed the service tax demand of ₹ 9,886/- under the category of Transport of Goods by Roads Service, service tax amount of ₹ 58,66,991/- under the category of Management, Maintenance or Repair Service, demanded interest, imposed penalty of ₹ .....

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..... ent of various services which was provided by various service provider. Therefore the appellant has neither provided the service nor retained the amount of maintenance with them. Therefore the appellant has neither provided the service nor retained the amount of maintenance with them. Therefore no service is involved and appellant is not liable for any service tax on so called Management, Maintenance or Repair service of the building. He submits that this issue has been settled in the case of Kumar Beharay Rathi vs. C. Ex, Pune -3 [2014(34) STR 139(Tri)]. In view of this judgment, the demand confirmed by the impugned order is not sustainable. As regard the penalty imposed under Section 78, he submits that the service tax on GTA escaped only .....

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..... nce or Repair service is clearly unsustainable and therefore same is set aside. As regard penalty under Section 78 commensurate to the service tax on GTA service. We find that firstly the appellant after knowing about non payment of service tax on GTA, they promptly paid the service tax alongwith interest which is much before the issuance of show cause notice. In this fact we are of the view that penalty is not imposable in terms of section 73(3) of Finance Act,1994, according to which if the amount of service tax alongwith interest is paid then no show cause notice should have been issued. Taking into consideration overall facts and circumstances of the case, we find that the appellant have also made out a case of reasonable cause accordin .....

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