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TMI Blog2016 (12) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... in the gross value of the construction service. Therefore the issue involved in the present case was not free from doubt. The appellant, immediately, on pointing out by the department, paid the service tax and the interest thereupon even before issuance of the show cause notice - the appellant has been able to show the reasonable cause for non-payment of service tax on the element of cost of free supplied goods - invocation of section 80 justified - penalty waived - appeal allowed - decided in favor of appellant-assessee. - Appeal No. ST/85688/2014 - ORDER No.A/87846/16/SMB - Dated:- 8-6-2016 - Shri Ramesh Nair, Member (Judicial) Shri Jayesh P. Doshi, C.A. for Appellant Shri V. Kaushik Assistant Commissioner (A.R) for responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of penalty under Section 78 of the Act by invoking the provisions of Section 80 of the Finance Act. 3. Shri Jayesh P. Doshi, Ld. Chartered Accountant appearing on behalf of the appellant submits that in the present case there is no intention of the appellant to evade the service tax. The appellant has been paying service tax regularly. The demand was confirmed only on the cost of goods supplied free of cost by the service recipient. On the issue, whether the cost of free supplied goods should be included in the gross value of the construction service was a matter of dispute and the same was settled by the Larger Bench decision of this Tribunal in case of Bhayana Builders (P) Ltd. Vs. Commissioner of Service Tax, Delhi 2013 (32) S.T.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he department which shows the clear intention to evade the payment of service tax on the element of free supplies goods. Therefore, the penalty was rightly imposed by the lower authorities, which does not require any interference. 5. I have carefully considered the submissions made by both the sides. I find that the appellant has been regularly paying the service tax. The short payment of service tax arose only due to the reason that the value of free supplies of goods was not included in the gross value of the construction service. On the dispute that whether the cost of free supplies goods should be included or otherwise the Larger Bench of this Tribunal in Bhayana Builders (P) Ltd. (supra) held that the same is not includible in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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