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TMI Blog2017 (6) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... ed partly in favor of appellant. - ST/42400/2016 - 40631/2017 - Dated:- 13-4-2017 - Shri Madhu Mohan Damodhar, Member Technical Shri S. Venkatachalam, Advocate for the appellants Shri L. Pannerselvam, AC (AR) for the Respondent. ORDER The brief facts of the case are that the appellants are contractors engaged in civil contract works for M/s. Sulzon Infrastructure Service Ltd. (in short SISL), during the period 2008-09. They had executed civil contract work for construction of basement for erection of wind tower for SISL. On investigation initiated by the Department it appeared that they had completed the work to the tune of ₹ 3 Crores and received the payment from SISL, however, they had failed to discharge the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not taxable. SISL have thus paid them only work contract charges and have not included any service tax amount therein. In support of this contention, Ida Consultant takes me to para 5.1 of the SCN at page 88 of the appeal paper book, where the demand has been quantified and Income as per bank receipt has been adopted cum tax value and tax liability has been quantified accordingly in that as ₹ 23,445,419/-. Ld. Consultant submitted that in these circumstances there cannot be any imposition of penalties under Section 78 of the Act. 3. On the other hand, Id. AR takes me to Section 73 (1A) ibid as it was in force during the relevant period, wherein it is indicated that service tax not paid by reason of fraud, collusion, mis-state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have very well sought advice from the departmental officers, which has not appeared to have been done. In the circumstances, I am constrained to find that the appellant cannot take shelter under the provisions of 73(3) of the Act. In conclusion, I find merit in the argument of the Id. AR that they would be liable to penalty under Section 73(1A) as was in force during the relevant time provisions of which are reproduced below:- (1A) Where any service tax has not been levied or paid or has been short levied or short-paid or erroneously refunded, by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Chapter or the rules made thereunder, with intent to evad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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