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TMI Blog2017 (12) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... ghtly invoked - the demand of Service Tax and interest thereof is upheld. Penalty u/s 77 and 78 - Held that: - Since the issue of penalty u/s 78 is mixed question of law and fact, we are of the view that the matter needs to be reconsidered by the Adjudicating Authority - For the purpose of re-deciding the issue of penalties imposed under Section 77 & 78, the matter is remanded to the Adjudicating Authority. Partly decided against appellant and part matter on remand. - ST/89459, 89460 & 89681/13 - A/91443-91445/17 - Dated:- 13-12-2017 - Mr. Ramesh Nair, Member ( Judicial ) And Mr. Raju, Member ( Technical ) Shri R. B. Pardesi, Advocate for Appellant Shri M. P. Damle, Asst. Commissioner (A.R.) Shri B. Kumar Iyer, Supdt ( A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d entire Service Tax along with interest before issuance of show-cause notice, for this reason also penalty under Section 78 should not have been imposed by the Adjudicating Authority. In support of his submission he placed reliance on following judgments:- (i) Tidewater Shipping Pvt. Ltd. Vs. Commissioner of Service Tax, Bangalore - 2008 (11) STR 475 (Tri.-Bang.) (ii) M.P. Laghu Udhyog Nigam Ltd. Vs. Commissioner of Central Excise, Bhopal - 2015 (37) STR 308 (Tri.-Del.) (iii) Commissioner of Central Excise, Tirunelveli Vs. Global Software Solutions (P) Ltd. - 2011 (24) STR 707 (Tri.-Chennai) (iv) Shree Parvati Construction Vs. Commissioner of Central Excise, Kolhapur -P 2015 (39) STR 648 (Tri.-Mumbai) ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. We have carefully considered the submissions made by both sides and perused the records. We find that as regard levy of Service Tax, there is no dispute that the Service Tax is statutorily payable on the Construction of Residential Complexservice. The only grievance of the appellants is that the demand for the extended period was wrongly confirmed and penalty under Section 77 78 was not imposable. As regard the issue of on time bar, we find that as per the appellants submission regarding their bonafide belief on the basis of challenge of validity of levy of Service Tax on Construction of Residential Complex before the Hon'ble High Court, itself show that the appellant were aware about the taxability of their service. Had there be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon by the Adjudicating Authority are not on identical facts. It is also observed that the appellants have relied upon various judgments on the issue of penalty under Section 78 which have not been considered by the Adjudicating Authority. Since the issue of penalty under Section 78 is mixed question of law and fact, we are of the view that the matter needs to be reconsidered by the Adjudicating Authority. After considering the fact and various decisions relied upon by the appellants, the demand of Service Tax and interest thereon confirmed by the Revenue and paid by the appellants are upheld. For the purpose of re-deciding the issue of penalties imposed under Section 77 78, the matter is remanded to the Adjudicating Authority. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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