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TMI Blog2024 (4) TMI 334X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to as 'Appellate Tribunal']. 2. The relevant facts necessary for consideration of the present appeal are that the respondent-Assessee was issued with a show cause notice dated 19.10.2012 by the Office of Commissioner Of Service Tax, Service Tax Commensurate, Bengaluru, requiring the Assessee to furnish balance sheets for the period from 2007-08 to 2011-12 and the various other documents for the said period. The Assessee responded to the said show cause notice and furnished certain documents. Subsequently, vide Order-In-Original dated 31.03.2016 which was issued on 27.04.2016 it was held that the Assessee had suppressed the facts with intent to evade payment of service tax within the meaning as provided under the proviso to Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b) Whether the CESTAT was right in setting aside the penalty under Section-78 of the Finance Act, 1994 in respect of Construction of Residential Complex Service (other than Villas) provided by them for the period-07/2010 to 03/2012?" 5. Learned standing Counsel Smt. Vanita K.R for the Appellant/Revenue, vehemently contended that the respondent is guilty of suppression and that the Appellate Tribunal has erroneously relied on the judgment of the Hon'ble Supreme Court in the case of Nizam Sugar Factory v. CCE A.P. 2008 (9) STR 314 (SC) and held that they are not guilty of suppression. Further, it is contended that the earlier show cause notice was issued for a completely different purpose and had no relation to the present show cause noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. In the case of Nizam Sugar Factory, the Hon'ble Supreme Court has held as follows: "9. Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same hold that there was no suppression of facts on the part of the assessee/appellant." (emphasis supplied) 11. The Appellate Tribunal has considered the aspect regardi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal is contrary to any specific material on record. The Appellate Tribunal has considered the aspect of suppression from the proper perspective and noticing the settled position of law, has rightly held that the aspect of suppression cannot be attributed to the Assessee. 14. In view of the aforementioned, the substantial question of law No. 1 is answered in the affirmative i.e., in favour of the Assessee and against the Revenue. The substantial question of law No. 2 is consequential to substantial question of law No. 1 and hence, the substantial question of law No. 2 is also answered in the affirmative, against the Revenue and in favour of the Assessee. 15. In view of the aforementioned, the above appeal filed by the R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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