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TMI Blog2021 (2) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the purpose of construction of residential complexes and after 16.06.2005, they had not collected/realised any amount from their clients separately towards service tax. This factual position has been noted and admitted by the Adjudicating Authority while issuing the show cause notice dated 19.04.2007, as could be seen from paragraph 11(iv) of the show cause notice - Unfortunately, the Adjudicating Authority did not examine this factual position for its correctness, but proceeded on the basis as if the assessee collected service tax separately, did not remit it to the Department, on the contrary filed Nil return. Uncertainty in the implementation of the law - HELD THAT:- For the first time, this particular service was brought with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Honourable Mr. Justice T.S. Sivagnanam And Honourable Ms. Justice R.N. Manjula For the Appellant : Mr.G.Baskar for Ms.G.Susheela For the Respondents : RR1 2 Mr.A.P.Srinivas, Senior Standing Counsel R3 Tribunal JUDGMENT T.S.SIVAGNANAM, J. This appeal filed by the appellant/assessee under Section 35G of the Central Excise Act, 1944 (hereinafter referred to as the Act ) read with Section 83 of the Finance Act, 1994 (hereinafter referred to as the Finance Act ), is directed against the order dated 17.03.2015, passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai (for brevity the Tribunal ) in Final Order No.40447 of 2015. 2.The assessee has raised the following su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and the Rules made thereunder. 4.The assessee submitted their reply, which was also in tune with the statement, which was recorded from the Proprietor of the assessee and the Accounts Manager, at the time of inspection. The assessee would contend, though they collected amounts as advances from their clients, who have booked apartments towards construction of residential complexes after 16.06.2005, they had not collected/realised any amount from their clients separately towards service tax. 5.With regard to the allegation of non-payment of service tax that had fallen due with effect from 16.06.2005, they had stated two reasons. Firstly, the assessee was under the impression that service tax liability would arise only after completi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost of construction, cash breakup towards the services rendered by them, held the assessee to be guilty of filing Nil return, therefore, imposed penalty under Sections 76, 77 and 78 of the Act. 7.Aggrieved over the same, the assessee filed appeal before the Commissioner of Central Excise (Appeals), Chennai. The said appeal was allowed in part. The first appellate authority vacated the penalty imposed under Sections 76 and 77 of the, but confirmed the penalty levied under Section 78 and while doing so, has not given any independent reason as to why he chose not to interfere with that portion of the order passed by the Adjudicating Authority and sustaining the penalty under Section 78 of the Act. 8.The assessee, being aggrieved over suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10.The second aspect of the matter, which the assessee focused was with regard to the uncertainty in the implementation of the law because, for the first time, this particular service was brought within the service tax net with effect from 16.06.2005. The service tax was introduced by amendments to Finance Act, 1994 with effect from from 10.09.2004. The legislation was at its nascent stage. There were several interpretations to the new law and uncertainty loomed even with the Department. This submission made by the assessee was not considered by the Adjudicating Authority. In fact, the assessee stated that as soon as the Department had advised them, they had remitted the entire amount along with interest. This was much prior to the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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