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TMI Blog2023 (6) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... liability to pay the service tax under the category renting of immovable property service . There were several litigations pending before various forums. The amendment brought forth in section 65(105)(zzzz) vide Finance Act, 2010 made the provisions applicable retrospectively. Later, the Government also introduced sub-section (2) of section 80 granting time for the assessees to pay up the liability along with interest. However, sub-section (2) of section 80 does not bar the application of sub-section (1) of section 80. The Commissioner has recorded that there was confusion during the relevant time and the respondent was under bonafide belief that there was no liability to pay service tax. It is also noted by the Commissioner that being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 - Final Order No. 40427/2023 - Dated:- 13-6-2023 - MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND SHRI M. AJIT KUMAR, MEMBER (TECHNICAL) Shri R. Rajaraman, AC (AR) for the Appellant None for the Respondent ORDER The respondent was issued Show Cause Notice dated 9.10.2012 proposing to demand service tax under the category of Renting of Immovable Property Service for the period from 1.6.2007 to 31.12.2011. After due process of law, the adjudicating authority confirmed the demand along with interest. But, however, did not impose any penalty invoking section 80 of the Finance Act, 1994. Aggrieved by the order of not imposing any penalty, the department has come in appeal before the Tribunal. 2. The learned AR Shri R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalty as provided under sub-section (2) of section 80 of the Finance Act, 1994. 3. It is submitted by the learned AR that though the adjudicating authority recorded that the respondent is not eligible for the waiver under section 80(2) has however erroneously extended the benefit of waiver under section 80(1) of the Act ibid stating that there existed a genuine confusion as to taxability of renting of immovable property service. It is also discussed that the respondent being a government body, there is no motive for non-payment of service tax. The learned AR submitted that once the section has been amended in 2010 retrospectively with effect from 1.6.2007, such contentions put forward by the respondent ought not to have been considered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en no appearance for the respondent on 15.3.2023 and 12.4.2023. Today also there is no appearance on behalf of the respondent. Hence the matter has been taken up for disposal after hearing the learned AR for the Department and perusal of the records. 6. The issue is with regard to the penalties proposed under section 76, 77 and 78 in the Show Cause Notice which have been dropped by the adjudicating authority by invoking sub-section (1) of section 80 of the Finance Act as it stood during the disputed period. 7. The demand of service tax has been confirmed under the category of Renting of Immovable Property Service as defined under sec. 65(105)(zzzz). The said services were made taxable with effect from 1.6.2007. Several litigations w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 31.3.2013. The adjudicating authority has considered in paragraphs 12.2 to 12.5 the reason for waiving the penalty by applying sub-section (1) of section 80 of the Finance Act. Sub-section (1) of section 80 which was in force at that time reads as under:- Section 80. Penalty not to be imposed in certain cases. (1) Notwithstanding anything contained in the provisions of section 76, section 77 or first proviso to sub-section (1) of section 78 no penalty shall be imposable on the assessee for any failure referred to in the said provisions if the assessee proves that there was reasonable cause for the said failure . 9. In the present case, it cannot be disputed that there was confusion with regard to the levy and liability to pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax. The penalties were set aside in terms of sec. 80 of the Act. It was held that of Section 80 has an overriding effect over other sections. In the present case, there is nothing brought out by evidence that the respondent, Municipality had not paid the service tax with deliberate intention to evade tax. Instead there was confusion going on as to the levy of tax itself. The Tribunal in the case of Sree Venkateswara Hi-Tech Machinery Vs. CCE, Coimbatore reported in 2007 (6) STR 139 (Tri. Chennai). The relevant para reads as under:- As rightly pointed out by learned Consultant, the original authority ruled out intention on the part of the assessee to evade Service Tax vide para 12 of its order. This finding of the original authority, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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