2010 (6) TMI 130

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....h the Service Tax Department for providing 'Construction Service'. During the period July 2004 to June 2005, the appellants collected project management fees from clients of their construction service. From September 2004, such charges collected were included in the taxable value of construction service rendered by them and they paid the tax due after availing abatement of 67% applicable to construction service. On receipt of intelligence, the authorities gathered evidence and issued show cause notice to the appellant on 23.11.2005. The original authority found that the appellants paid the tax due for 7/2004 to 6/2005 of Rs 1,62,625/- (Rupees One lakh sixty two thousand six hundred and twenty five only) along with applicable interest of Rs ....

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....ngalore-II Vs. Sunitha Shetty [2006 (3) STR 404 (Kar.)] and judgment of the Hon'ble High Court of Punjab & Haryana in the case of CCE, Jalandhar Vs. Darmania Enterprises [2009 (14) STR 741 (P&H)]. It is submitted that in these cases, the High Courts had ordered that when the original authority had felt it proper not to impose penalty on service tax assessee, the Revisionary Authority could not impose penalty in revision proceedings. 5. I have heard the learned JDR who submits that the assessee had willfully evaded payment of service tax due and had suppressed facts with intent to evade payment of duty. He relied on the judgment of the Kerala High Court in the case of Assistant Commissioner of Central Excise Vs. Krishna Poduval [2006 (1) ST....

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....on 73 (1) in respect of the amount so paid. 7. Learned Chartered Accountant had cited these provisions during hearing to claim that in terms of provisions of this sub-section, the show cause notice in the instant case was not required to be issued. Therefore, the revision proceedings following the order of the original authority are not sustainable in law. I find that in terms of these provisions, no show cause notice was liable to be issued to the appellants and no penalty could have been imposed on them. The impugned penalties are therefore liable to be set aside. 8. I also find that in the judgment of the Hon'ble High Court of Karnataka in CCE, Bangalore-II Vs. Sunitha Shetty case (supra), their Lordships held that the discretion exerc....

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....ly restored the order of the Assessing Authority. Therefore, no question of law much less any substantial question of law would arise for determination of this Court. As a consequence, the appeal fails and the same is dismissed.' 9. A couple of other cases such as CCE, Mangalore Vs. Padma Cable TV [2010 (17) STR 361 (Tri.-Bang.)], Solomon Foundry Vs. CCE, Tiruchirapalli [2008 (12) STR 750 (Tri.- Chennai)] and Vista Infotech Vs. CCE, Bangalore [2010 (17) STR 343 (Tri.-Bang.)] cited by the appellants also held the same view consistent with the ratio of the above judgments of the High Courts. 10. I have also considered the case laws cited by the learned JDR and the CBEC Circular. In Assistant Commissioner of Central Excise Vs. Krishna Poduv....