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TMI Blog2019 (7) TMI 1772X X X X Extracts X X X X X X X X Extracts X X X X ..... of the decision of the Tribunal in the case of M/S R.K. REFRESHMENT AND ENTERPRISES (P) LTD, M/S R.K. ASSOCIATES AND HOTELIERS (P) LTD VERSUS CCE RAIPUR [ 2018 (2) TMI 1412 - CESTAT NEW DELHI] where it was held that though the said sub-section was basically with reference to renting of immovable property service, the main Section 80 is still available to the appellant considering that the tax liability under renting of immovable service was subject matter of various disputes, amendments, including retrospective amendment. As such, the penalty imposed on this service is waived invoking provisions of Section 80. The penalties imposed under section 78 and 77(1)(d) are set aside - Appeal allowed - decided in favor of appellant. - Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three) only along with interest and penalty. c) I confirm the demand of ₹ 36,479/- (Rupees thirty six thousand Four hundred and seventy nine) only as Service Tax including cess and order to appropriate ₹ 36,479/- paid vide challan no.53024 dated 02/01/2016. d) I confirm the interest imposed upon the assessee as applicable on (a) (c) above under section 75 of the Finance Act, 1994 as amended and order to appropriate the payment of ₹ 99,479/- (Rupees Ninety nine thousand four hundred and seventy nine) only made vide challan no 50587 and challan no.50418 both dated 18.02.2017. e. I confirm the late fee recoverable from them as per Rule 7C of the Service Tax Rules for non submission/delay in filing of ST-3 ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the year 2010-11 and 2011-12 respectively was paid by the appellant along with interest of ₹ 99,479/- much before issuance of the show cause notice. This fact has been mentioned in the show cause notice and also in the adjudication order. The penalty proceeding under section 77(1)(a) has also been dropped by the adjudicating authority. The learned Advocate further contends that this was a mere case of short payment of tax owing to clerical error and should not be in any way construed as a willful attempt to evade payment of Service Tax. He further submits that there is no element of fraud, collusion, willful misstatement and suppression of facts warranting imposition of penalty under section 78 of the Finance Act, 1994. It is his s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the tax liability. They only requested for waiver of penalty invoking provisions of Section 80. The original authority declined to waive penalty on the ground that the appellants have not paid the Service Tax within the time mentioned under Section 80(2). We note that though the said sub-section was basically with reference to renting of immovable property service, the main Section 80 is still available to the appellant considering that the tax liability under renting of immovable service was subject matter of various disputes, amendments, including retrospective amendment. As such, the penalty imposed on this service is waived invoking provisions of Section 80. Also, it was held by the Tribunal in the case of SREE KANYACOMBINES Ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), the Tribunal in a similar set of facts has set aside the penalty imposed under Section 76 of the Finance Act, 1994. In the present case, there is no allegation of fraud, suppression of facts or wilful misstatement. The service tax on renting of immovable property was not paid as the issue was contentious an there were decisions in favour of assessee also. Following the judgment laid in the case of Mahesh Vakatawarmal Ratho (supra), I hold that the penalty imposed under Sections 77 and 78 is not sustainable as the appellant has succeeded in establishing reasonable cause for the failure. In view thereof, the impugned order is modified to the extent of setting aside the penalties imposed without disturbing the confirmation of demand of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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