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TMI Blog2016 (10) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... ble cause for waiver of penalties invoking under Section 80 of the Finance Act - penalty waived - appeal allowed - decided in favor of appellant. - ST/85125/2015 - A/86494/16/SMB - Dated:- 11-3-2016 - Shri Ramesh Nair, Member (Judicial) Shri. Amit Agrawal, C.A. for Appellant Shri. Sanjeev R. Nair, Examiner (A.R) for respondent ORDER The appeal is directed against Order-in-Appeal No. PUN-EXCUS-001-APP-070-14-15 dated 18.9.2014 passed by Commissioner (Appeals) Central Excise Pune-I whereby the Ld. Commissioner dismissed the appeal filed by the appellant. The present appeal was filed by the appellant only challenging the penalties imposed under Section 77 78 of the Finance Act, 1994. 2. The fact of the case is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us circulars issued by the Board on this service. He submits that the issue of levy of service tax was also challenged in the following judgments: (i) Magus Construction Pvt. Ltd. Vs. Union of India 2008 (11) S.T.R. 225 (Gau.) (ii) Commissioner of Service Tax Vs. Sujal Developers 2013 (31) S.T.R. 523 (Guj.) (iii) Maharashtra Chamber of Housing Industry Vs. Union of India 2012 (25) S.T.R. 305 (Bom.) In view of the uncertainty on the levy of service tax due to the matter being in litigation in various courts, the many construction industry were not paying service tax on the construction service. The appellant on their own computed the service tax and paid the same along with interest before issuance of show cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) Fibre Foils Ltd. Vs. Commissioner of Central Excise, Mumbai-IV 2005 (190) E.L.T. 352 (Tri-Mumbai) (iv) Union of India Vs. Rajasthan Spinning Weaving Mills 2009 (238) E.L.T. 3 (S.C.) He submits that under the given circumstances of the present case the penalty is not imposable invoking Section 80 as held in the following judgments: (i) ETA Engineering Ltd. Vs. Commissioner of Central Excise, Chennai 2006 (3) S.T.R. 429 (Tri.-LB) (ii) Commissioner of Service Tax, Bangalore Vs. Vinayaka Travels 2011 (23) S.T.R. 5 (Kar.) (iii) Commr. of Service Tax, Mumbai Vs. Gamma Consultancy Pvt. Ltd. 2006 (4) S.T.R. 591 (Tri.-Mumbai). 4. On the other hand, Shri Sanjeev Nair, Ld. Examiner (A.R.) appearing on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of complex were challenged. It is also observed that even after 1.7.2010 the Maharashtra Chamber of Housing Industry filed writ petition in the Hon ble Bombay High Court wherein a stay was granted on 23.10.2010 and finally judgment was passed by the Hon ble High Court in January 2012 only. Even the said judgment was challenged by Maharashtra Chamber of Housing Industry (supra) which is pending in the Hon ble Supreme Court. In view of this position, on the taxability of the services, the bona fide belief of the appellant in non payment of service tax in time, is established. It is not disputed that the appellant have recorded the entire transaction of their services in their books of accounts. In view of the above position, I fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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