SHREE PARVATI CONSTRUCTION Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THE appellant, M/s. Shree Parvati Construction, is a partnership firm, engaged in commercial and industrial construction, works contract service and also received input services under Goods Transport Agency Services. This appeal is preferred against Order -in -Appeal No. PUNE -ST -002 -APP -46 -13 -14, dated 24 -6 -2013 passed by the Commissioner of Customs & Central Excise (Appeals), Pune -II. The brief facts are that the appellant was not registered under the provisions of Service Tax. On receipt of the notice dated 19 -10 -2009 demanding certain information, the appellant immediately responded and filed the relevant information, on understanding that they are liable to pay Service Tax have immediately sought registration which was granted on 22 -12 -2009. Further, as appears from the show cause notice, the appellant paid all the admitted tax along with interest. The show cause notice dated 5 -4 -2011 was issued for extended period from November, 2006 to March, 2010 alleging therein that the appellant have failed to pay Service Tax amount of Rs. 1,88,663/ -, under the commercial construction service for the work executed for M/s. Sterling Lead Pvt. Ltd., M/s. Maharashtra Machines, M/s. Maharashtra Engineers and M/s. Maharashtra Enterprises, etc. Further, demand of Rs. 13,46,239/ - was proposed under the Works Contract Service in respect of which the appellant had already deposited the Service Tax amount of Rs. 8,97,867/ -. Further Rs. 1,728/ - was demanded towards Goods Transport Agency - input services. The appellant contested the show cause notice by filing detail reply and leading evidence. Vide Order -in -Original, the proposed demand was confirmed and all the tax amounts were appropriated save and except the disputed amount under Works Contract Service. Penalty was also imposed under Sections 70, 77(1)(a) and 78 of the Finance Act, 1994.

(2.) LEARNED AR relies on the impugned order.

(3.) HAVING considered the rival contentions, I find that it is a facts on record that other than admitted liability, amount proposed to be demanded and confirmed from the appellant have been dropped by the first appellate authority. Thus, the contention of the appellant stands fortified and there is no finding either in the Order -in -Original or in the Order -in -Appeal indicating any action or inaction on part of the appellant indicating towards collusion, fraud, active concealment of tax under the Finance Act, 1994. However, it appears that the appellant had turnover above Rs. 40 lakhs per annum under some of the financial year during the disputed period. In such circumstances, as provided under Section 44AB of Income -tax Act, the books of account were subject to tax audit and accordingly, it appears that the appellant was receiving the service of professionals like CA understanding tax obligations. But, there is no finding of any contumacious conduct on part of the appellant. Thus, in this view of the matter, I find that the appellant is entitled to benefit under Section 73(3) of the Finance Act, 1994 and it appears that the show cause notice was issued without proper consideration of the facts on record. In this view of the matter, penalty as reduced by the first appellate authority is dropped and set aside and the appellant will be entitled to refund or adjustment of the excess tax paid, which shall be calculated and granted by the adjudicating authority. Thus, the appeal is allowed with consequential benefits, if any, in accordance with law.