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TMI Blog2024 (8) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as a ground, anybody rendering taxable services and not paying tax can simply take the plea that some consultant had advised him not to pay service tax and not take registration and service tax - in the provisions related to invoking extended period of limitation under section 73 and imposition of penalty under section 78 are identical to the provisions of section 73 (4) - there are no reason to take a different view in this regard to the extended period of limitation or imposition of penalty under section 78. The rest of the demand of service tax is upheld. The amounts already paid by the appellant as service tax need to be appropriated against the remaining part of the demand. Interest will be payable as appropriate and any amounts of interest already paid shall be adjusted towards it. Penalty imposed under section 78 of the Finance Act needs to be recomputed accordingly. Appeal allowed in part. - MS. BINU TAMTA, MEMBER (JUDICIAL) AND MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) Shri Rajesh Jain and Ms. Tanya Saraswat, Advocates for the appellant. Shri Sanjeev Kumar Ray, Authorized Representative for the Department ORDER M/s. Bansal Construction Co., New Delhi [Appellant] filed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly classified as construction of complex services and the work orders which they had received from DDA show that they were not for construction of any complex; (3) The appellant s work orders included use of material. Therefore, this activity falls under the head of Work Contract Service as defined under section 65 (105) (zzzza) w.e.f. 01.06.2007 which also excludes roads ; (4) The benefit of Notification No. 1/2006-ST dated 01.03.2006 and Notification No. 12/2003-ST should be allowed to the appellant if service tax is charged ; (5) The SCN is barred by limitation as there is no evidence of fraud or collusion or willful mis-statement or suppression of facts or violation of act or rules with an intent to evade payment of service tax. The appellant was under the bonafide belief that it was not liable to pay any service tax on any of the services rendered by it and, therefore, it had not paid service tax at all. On being pointed out by the department, it had paid service tax on such services which were not exempted ; (6) As per section 73 (3) of the Finance Act, where the service tax has been paid voluntarily along with interest no demand should be issued under section 73 at all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25 (b) of the Finance Act also excludes services rendered in construction of roads from the ambit of tax. This section reads as follows :- Commercial or industrial construction means (a) construction of a new building or a civil structure or a part thereof; or (b) construction of pipeline or conduit; or (c) completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or (d)repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit, which is (i) used, or to be used, primarily for; or (ii) occupied, or to be occupied, primarily with; or (iii) engaged, or to be engaged, primarily in, commerce or industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams; He, therefore, submits that no service tax is payable on these amounts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the services rendered by the appellant and the amount received by it. As the details of the services rendered by it were not available best judgment assessment was resorted to under section 72 of the Finance Act. Therefore, the demands were confirmed as per this judgment. 8. Learned authorized representative further submits that the appellant cannot plead ignorance as the reason for not getting registered and not paying service tax. Ignorance of law is not an excuse. Clearly, the appellant had violated the provisions of Finance Act and the Service Tax Rules in not obtaining service tax registration and not assessing the service tax payable and further not paying the service tax. The appellant had also not filed the service tax returns. 9. Only after the investigation was completed had the appellant obtained registration. Therefore, violation of Act or Rules with an intent to evade payment of service tax is self-evident in this case. Therefore, extended period of limitation under section 73 was correctly invoked in this case. 10. As far as the provision of section 73 (3) is concerned, this is subject to section 73 (4). In other words, any case which is covered by section 73 (4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which revealed that the appellant had provided taxable services. Thereafter, Revenue sought further details from the appellant and as per best judgment assessment, issued the SCN demanding service tax invoking extended period as it had violated the provisions of Service Tax Rules and Finance Act inasmuch as it had neither disclosed to the department that it was rendering taxable services nor had it obtained service tax registration nor did it pay any service tax until after the investigation. The submission of the learned counsel for the appellant is that though the appellant violated the provisions of Finance Act and Service Tax Rules, it had no intent to evade payment of service tax. His submission is that the appellant was told by some consultant that it need not pay service tax and therefore based on that advice it had not obtained service tax registration and had not paid service tax. 16. We find that the intent can only be infered from the facts of the case. In this case, the violation of the Act or Rules is evident and it also evident that as a result the appellant had not paid service tax which it had to pay. The plea that it s consultant had advised it not to pay service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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