9911796707
TMI Blog2021 (2) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... lex was never intended for the personal use of the appellant. But the law requires that such complex shall not be constructed by a person directly engaging any other person for designing or planning of the layout, which according to us stands satisfied here since the Revenue has nowhere flagged any objections on the satisfaction of this requirement of law - the demand do not sustain. Works Contract Service - HELD THAT:- The appellant as a builder was expected to put up partial construction as per plan which thereafter, i.e., after sale, was required to be completed. Hence, we find that the appellant was required to undertake a host of activities to ensure completion of the project before handing over possession - the demand cannot sustain. Demand of Service Tax on pipe laying and pipe laying civil works at MCGM-TANSA Pipeline - HELD THAT:- Revenue is not able to establish that this is a commercial or industrial project. Hence, we agree with the appellant s contentions that the demand on this count cannot sustain. Penalty under Section 78 - HELD THAT:- As per first proviso to Sub-section (1) of Section 78 of the Act, no penalty shall be imposable for any failure refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Pradesh Industrial Infrastructure Corporation and M/s. IVRCL Infrastructure Projects Ltd., by which the appellant was formed as a Special Purpose Vehicle (SPV) to undertake construction of residential apartments in the lands owned by SAAP. He would also submit that the residential apartments so constructed would be used by the sportspersons during the Asian Games, after completion of which they would be sold to various buyers. 3.1.2 The appellant was permitted to undertake such selling activity after completion of the remaining construction activities and that the demand of Service Tax under CCS was confirmed on such value received from customers, excluding the sale-deed value, but without granting the benefit of abatement. 3.2. The next demand pertains to the Service Tax under site formation and clearance, excavation and earthmoving and demolition service for the period from 2009-10 and 2010-11. Learned Advocate would, in all humility, submit that the appellant has not contested the demand on merits, but however, has only contested the imposition of equal penalty under Section 78. Learned Advocate would submit that none of the ingredients as prescribed under Section 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) S.T.R. 387 (Mad.)] affirmed in Addl. Commr. ofC.Ex. Madurai v. M/s. Strategic Engineering P. Ltd. [2016 (41) S.T.R. 373 (Mad.)] 3.5 The next demand pertains to the Service Tax which, according to the Learned Advocate, is not disputed as the same was paid along with interest. He would submit that the appellant is contesting only the levy of penalty under Section 78 on the ground of bona fides. 3.6 Learned Advocate thus pleads for deletion/setting aside of the demands as well as penalty confirmed in the impugned order. 4.1 Per contra, Learned Departmental Representative for the Revenue, while relying on the reasons recorded in the impugned Order-in-Original, also reiterated the findings of the lower authority. He would also inter alia submit that primarily the construction activity was brought under Service Tax net with effect from 16.06.2005 itself, which fact the appellant was very much aware of; that as could be observed from the composite contract as also the pleadings of the appellant, the land belonged to SAAP, which upon construction was only sold to the customers by the appellant; that the obligation on the part of the appellant was only to complete the remainin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has all along pleaded bona fides that there was no liability to Service Tax. Moreover, we find that there is basis for assuming bona fide since Govt was also a party to the contract. On the other hand, revenue has never dislodged such belief entertained by the appellant nor is there anything brought on record to even suggest that such assumption of bona fide was wrong; rather penalty was levied as a routine. We find force in the arguments that the same is levied without verifying if the ingredients of S.78 are present to justify levy. Hence, we are of the considered opinion that even this levy of penalty cannot sustain. 8.1 On the next demand under Works Contract Service (WCS) in respect of PranahithaChevella Lift Irrigation Project, we note that the Hon ble Larger Bench of the Tribunal in M/s. LancoInfratech Ltd. (supra) has held as under : 18. Analyses of Issues (B), (C) and (D) (a).. (b).. (c).. . . . (v) From the guidance provided by the above precedents and in view of the fact that in the commercial world and practice, in legal and technical Dictionaries, EPC contracts are synonymously known and referred to as turnkey contracts as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to pay service tax, for contravention of Rules and Provisions of the Act, or for suppression of facts etc., if the assessee proves that there was reasonable cause for such failure. 12. From the facts available on record, it is noticed that entire facts were available on record and on this there is no dispute; nor is there any contrary finding by the adjudicating authority. The entire dispute arose, as pleaded by the appellant, on account of wrong interpretation/understanding of the provisions of the Act and the lower authority has not disputed the bona fide pleadings of the appellant. But the penalty is levied as if it is automatic. However, it can hardly be said that there was evasion, much less wilful evasion, to pay tax or not to comply with the provisions of the Act. On the above analyses, we are inclined to accept the case of the assessees and hold that there was no justification for imposition of penalty, especially when there was no allegation of fraud, mis- representation, etc. Accordingly, the penalty imposed on the appellant shall stand deleted. 13. In view of the above, the appeal stands allowed on the above terms with consequential benefits, as per law. (Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
