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TMI Blog2017 (7) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... own hand - demand upheld. The appellant have rightly claimed the cum-tax benefit available in principle and the same is admissible to them - As regard the interest amount of admittedly paid by the appellant, the same is rightly adjustable against the total demand. Penalty u/s 78 - Held that: - the substantial amount of service tax was paid by the appellant along with interest during the proceedings before the adjudicating authority - the penalty imposed u/s 78 is not legal and proper - penalty imposed u/s 78 invoking the provisions of Section 80 of the FA, 1994. Appeal allowed - decided partly in favor of appellant. - ST/89111/2013 - A/88132/17/STB - Dated:- 28-6-2017 - Shri Ramesh Nair, Member (Judicial) And Shri Raju, Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant filed this appeal. 3. Shri JN Somaiya, learned counsel appearing on behalf of the appellant submits that the appellant have acted as a sub-contractor. Therefore, they are not liable to pay service tax. The main contractors are M/s. Chaitanya Udyog, M/s Eagle Construction and M/s Shivprasad Construction who were legally liable to pay the service tax on overall work of constructions. Therefore, the service tax liability on the present appellant is double taxation. He submits that they have paid an amount of interest 1.17 lakhs but the same was not appropriated. The cum-tax benefit was not extended. As regards the penalty, he submits that there is no mala fide intention on the part of the appellant. He submits that, initially th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaipur -12010 (17) STR 240 (Tri-Del.) 5. On the other hand Shri M.P. Damle, Learned Assistant Commissioner (AR) reiterates the finding of the impugned order, He further submits that the appellant has provided services of excavation which is an independent service and cannot be considered as a subcontractor service in connection with the construction service. Therefore, the benefit of sub-contractor's service being not chargeable to service tax is not available to them. 6. We have carefully considered the submissions made by both the sides. We find that the main submission of the appellant is that they being a sub-contractor to the main contractor, they are not liable to pay service tax. We find that the service provided by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of trenching work Rs.1,17,151/- Amount to be adjusted against the service tax demand Rs.3,76,309/- Rs.3,76,309 Net Service Tax payable Rs.96,163/- 8. As per the above chart, we find that the appellant have rightly claimed the cum-tax benefit available in principle and the same is admissible to them. As regard the interest amount of admittedly paid by the appellant, the same is rightly adjustable against the total demand. However, the above re-quantification to be accepted after verification by the adjudicating authority. As regard the penalty imposed under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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