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TMI Blog2017 (12) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... ir, Member (Judicial) And Shri Raju, Member (Technical) Shri Vinay Jain, C.A. for Appellant Shri Suresh M, DC (AR) for Respondent ORDER Per: Ramesh Nair The facts of the case are that the appellant are engaged in the construction of residential complex. The department issued show cause notice alleging that the Appellant have not discharged the service tax liability after bringing of said service into taxable net w.e.f 01.07.2010. On enquiry it was found that the Appellant was undertaking construction of residential complex. The purchasers are paying the cost of apartments in the different stages of construction services received by them but no service tax was paid by the Appellant. In view of above allegation, a sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides and perused the records. 5. We find that the Hon'ble Mumbai High Court in case of Maharshtra Chamber of Housing Industry (supra) held the levy to be constitutional. Thus following the judgment of Hon'ble High Court we hold that the Appellant is liable to pay service tax alongwith interest. However we note that since the levy itself remained disputed and there was confusion regarding the levy on the service of construction of residential complex, there was genuine reason for non- payment of service tax. Therefore we do not consider the case to be of deliberate non-payment of service tax. We find that in case of Trinity Developer supra on identical facts, the Tribunal held as under: - 4. We have gone through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) which is pending in the Honble 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 find that the appellant have shown the reasonable cause for waiver of penalties invoking under Section 80 of the Finance Act. In various judgments this Tribunal has taken a consistent view, that penalty under similar fact is not imposable. Some of the judgments were relied upon by the appellant as cited in their submission made hereinabove. In the similar circumstances, the penalties ..... X X X X Extracts X X X X X X X X Extracts X X X X
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