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TMI Blog2019 (6) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... ot prefer to pay and in that respect Rule 7 of the Service Tax 1994 read with u/s 70 of the Finance Act was invoked by the Appellant Department in 2 parts i.e. 2000/-upto dt. 8-4-2011 and 20,000/- for the remaining period post amendment dt. 8-4-2011 introduced to section 70 of the Finance Act. No irregularity or ir-rationality can be noticed in respect of the order of the adjudicating authority and therefore Commissioner (Appeal) s order equating fine for late filing of returns with penalty for non-payment of duty, prior to issue of show cause notice is not in conformity with the law and the same is required to be modified. Waiver of penalties - section 77, 78 of the Finance Act read with 7C of the Service Tax Rules - HELD THAT:- It is noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment searched appellant's premises, verified and seized its documents and observed that appellant had received an amount of ₹ 9,84,39,869/- as advance for booking of flats from its customers between the period 1-7-2010 and 31-3-2012. After abatement of 75 % on the taxable value was given, ₹ 25,34,827/- of Service Tax @ 10.30 % was due on the Appellant and the same was not paid to the Government. Appellant paid the same along with interest of ₹ 1,95,637/- and late fee in part of ₹ 49,700/- but as Service Tax was not paid by it on time, it was put to show cause, matter was adjudicated up and due liability along with penalty of ₹ 10,000/- u/s. 77, equivalent to penalty of ₹ 25,34,827/- U/s 78 of the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant time and if it had any confusion regarding the taxability of the service provided by the appellant, it would have paid the same under protest and sought for refund after the decision of Hon'ble Bombay High Court where the taxability issued was pending, as per the claim of the Respondent. 4. Further contention of the Learned AR was that assessee had made payment of late fee under Rule 7C of STR 1994 read with section 70 of the Finance Act, the same cannot be waived as it was not a penalty but fine for late filing of ST-3 refund, and dis-regarding these aspects, the Commissioner had disposed of the appeal of the present respondent by invoking waiver clause provided u/s 80 of the Finance Act on the ground that the appellant had paid Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court and even in judgement of Hon'ble Delhi High Court in the case of Suresh Kumar Bansal v. UOI [2016 (43) STR 3 (Del)] decided on 03-06-2016, levy was dropped. When several writ petitions were filed in which constitutional validity of such levy of Service Tax was under challenge, imposition of penalty on appellant on the ground of suppression of fact etc. were not maintainable for which interference in the order passed by Commissioner (Appeals) by the Tribunal is uncalled for. 6. Heard from both the sides at length and perused the case record. Admittedly w.e.f. 1-7-2010 necessary amendment was introduced and by way of explanation added to section 65 (105) (zzq) & (zzh), levy of Service Tax on construction by builder was introduced. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Appellant Department in 2 parts i.e. ₹ 2000/-upto dt. 8-4-2011 and ₹ 20,000/- for the remaining period post amendment dt. 8-4-2011 introduced to section 70 of the Finance Act. No irregularity or ir-rationality can be noticed in respect of the order of the adjudicating authority and therefore Commissioner (Appeal)'s order equating fine for late filing of returns with penalty for non-payment of duty, prior to issue of show cause notice is not in conformity with the law and the same is required tobe modified. 8. Now coming to the waiving off penalty imposed in the OIA by the Commissioner (Appeal) by invoking section 80 of the Finance Act, the main contention of the Appellant is that the said provision was deleted from the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Industry, Respondent had discharged the duty liability, immediately after the same being pointed out by the Respondent, for which penalty u/s. 78 is not supposed to be invoked. Going by the bare text of section 80, there is no reason to disagree with the order of the Commissioner (Appeals) that Respondent had given reasonable cause for such failure to pay tax. It is noticed from the OIO that Respondent had intimated the department on 24-9-2012 that all its tax liability have been discharged, which appears to have been done within a period of 6 months, effective date of implementation of section-80 being 28-05-2012. Therefore, no irregularity is found in the order of the Commissioner (Appeals) in waiving of penalty u/s. 76, 77 & 78 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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