Commissioner of Customs, Central Excise And Service Tax @Hash M/s. EWDPL

Particulars,"June, 2007 to

December, 2009 for

SCN No.22973","SCN No.4406 Jan.2 010 to

December, 2010

Rental Income as per SCN,"38,80,81,347","13,45,29,009

Less-Rental Charges received from

Sarovar Hotel",30942263,"7539049

[Deduction allowed only upto

June, 2010 in view of Explanation

II inserted in Section 65(105)zzzz

w.e.f. 01.07.2010 (calculated on

pro-rata basis).

Gross Taxable Value,357139084,126989960

Less Property Tax Paid,6553423,2743522

Taxable value (cum duty upto December,

2009",350585662,124246438

Tax Payable,36776071,12797383

Less â€" Payable by members of

Retailers Association of India",4243009,1642455

Payable by the Noticee i.e. EWDPL,32533062,11154928

Less â€" Paid,32533062,10378406

Difference,NIL,776522

It is further urged that the ld. Commissioner has erred in not imposing penalty under Section 78, which provides for levy of penalty in case of",,

nonpayment of service tax due to mis-representation, suppression, fraud, etc. It is further urged that in spite of the window provided under sub-",,

section(2) of Section 80 vide Finance Act, 2012, the respondent did not pay the entire service tax along with interest, within the prescribed period.",,

Ld. Authorised Representative further places relies on the following case laws:-,,

(i) 2007 (6) STR 32 (Tri.-Kolkata) â€" CCE, Kolkata-I Vs. Gurdian Leisure Planers Pvt. Ltd.",,

(ii) 2005 (188)E.L.T.445 (Tribunal-Chennai) â€" Trans (India) Shipping Pvt. Ltd. Vs.CCE, Chennai-I.",,

(iii) 2006 (1) S.T.R. 320 (Tri.-Delhi) â€" SPIC & SPAN security & Allied Service (I) P. Ltd. Vs. CCE, New Delhi.",,

Opposing the appeal, the learned Counsel for the respondent/assessee supports the impugned order. He further urges that Section 80 of the",,

Finance Act provides for non-levy of penalty in genuine cases, particularly, where there is a reasonable cause for failure to pay tax. Sub-section (2) of",,

Section 80, which was introduced vide Finance Act, 2012, provides an additional window for deposit of service tax along with interest in respect of the",,

service tax for renting of immovable property, within the prescribed period. Thus, on harmonious reading of sub-section (1) and (2) of Section 80, the",,

ld. Commissioner is fully justified in not imposing penalty under Section 78, taking notice of the litigation challenging the levy itself by the Retailers",,

Association of India before the various High Courts as well as stay granted, of which the respondent is also a Member. Further, levy was quashed by",,

the Hon’ble Delhi High Court in the year 2009 and the levy was re-introduced with respective effect, which is again subjudice before the",,

Hon’ble Supreme Court. Further, the law declared by the Hon’ble Supreme Court is binding on all subordinate courts within the territory of",,

India, as provided under the Article 141 of the Constitution of India. Thus, the Commissioner (Appeals) has rightly granted the relief to the",,

respondent/assessee with respect to the 50% of the amounts stayed by the Hon’ble Supreme Court, as hereinabove mentioned.",,

Ld. Counsel further urges that under the facts, there is no deliberate default in payment of service tax. Whatever delay has occurred, which is due",,

to the circumstances, as the levy itself was and is under the challenge by the ‘Association’ of assessee. Thus, the penalty imposed under",,

Section 76 is also fit to be set aside.,,

Having considered the rival contentions, we find that the ld. Commissioner has given cogent reasons and has recorded the findings that there is no",,

deliberate default on the part of the assessee, in not depositing the service tax. In this view of the matter, we uphold the non-levy of penalty under",,

Section 78 and also dropping of the demand of service tax amounting to Rs.58,85,465/- , in view of the stay granted by the Hon’ble Supreme",,

Court, being Interim Order dated 14.10.2011 in Civil Appeal No.8390 of 2011 and other appeals, in the case of Retailers Association of India Vs.",,

Union of India & Another reported at 2011 TIOL 104 SC-ST.,,

We further find that in view of the provisions of Section 76, which provides for levy of penalty, where a person is liable to pay service tax, fails to",,

pay such tax and further, Section 80 provides that where such failure is for reasonable cause, no penalty shall be imposed under Section 76, 77 and 78",,

of the Finance Act.,,

In this view of the matter, there being reasonable cause for late payment of service tax, we set aside the penalty under Section 76 also.",,

Accordingly, the appeal filed by the Revenue is dismissed. The respondent/assessee shall be entitled to consequential benefits in accordance with",,

law.,,

[Order pronounced in open court on 01.10.2020],,