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TMI Blog2018 (8) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... institution charges some amount and/or even if they have some surplus from the operations, that will not render the institution as not for charitable purpose, or a non-profit organisation - the learned Commissioner rightly granted the rebate for the material component under the admitted facts and circumstances. Penalty - works contract service - Held that:- It is apparent that that service tax was in arrears due to financial crunch being faced by the appellant assessee. During the relevant period, several employees had left due to its bad financial position, resulting into non-compliance of their tax obligations - penalty set aside by invoking section 80. The appellant shall be liable to deposit the interest on the tax amount for dela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement and they didn't discharge their service tax liability for the payment received against providing services to some of the projects which have been claimed as exempted. They had also received mobilisation advance and rental income. Accordingly show cause notice dated 24th October 2011 was issued for the period 2006 2007 to 2010 2011, invoking the extended period of limitation, demanding an amount of ₹ 15,11,31,413/-. As the appellant assessee had not provided complete details as requisitioned by Revenue, it was proposed to demand the said amount of duty by way of Best judgement assessment under section 72 of the Finance Act. Accordingly, based on the earlier SCN dated 24/10/2011 for the period 2010 2011, wherein the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x of ₹ 99,23,269/-. Further, it is stated that the appellant suffered a loss of ₹ 1,83,74, 101.19 in the financial year 2012 2013, which is occurred due to the escalation in the rate of various construction materials. Therefore the appellant in order to finish the pending contracts already in their hand to save further cost overrun, resulted into delay in deposit of the service tax. Thus there is no deliberate default in deposit of service tax. It is not the case of Revenue that in spite of having funds the appellant did not deposit service tax. 5. The learned Counsel further states that it is an admitted fact that the appellant have carried out the work of construction which involved both supply/sale of material and also t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of a hospital by Maharaja Agarsen Hospital, which is a commercial institution. So far the issue of abatement is concerned, the adjudicating authority have given the benefit under Notification No. 1/2006 ST, but have erred in not taking cognizance of the certificate issued by the chartered accountant of the appellant, wherein it is certified that tax have been calculated without considering abatement. 7. Having considered the rival contentions, we find that there is no merits in the appeal of Revenue. The argument of the Revenue that in the instant case the Maharaja Agarsen Hospital, the said hospital, if they are providing service for consideration, they cease to be for charitable purpose and it amounts to commercial purpose. I f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for work done. The learned Counsel have also placed reliance on the ruling of this Tribunal in CCE, Indore Vs.Kehems Engineering Pvt. Ltd 2016 (41) STR 307 wherein it has been held that where the liability of tax is disputed, the appellant is entitled to waiver of mandatory penalty. That it is apparent that that service tax was in arrears due to financial crunch being faced by the appellant assessee. During the relevant period, several employees had left due to its bad financial position, resulting into non-compliance of their tax obligations. Accordingly I find that there is reasonable ground for invocation of section 80 of the Finance Act and accordingly the penalty under section 76 is set aside. 9. The appellant shall be liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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