MRS DEVELOPERS Vs. COMMISSIONER OF SERVICE TAX
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
COMMISSIONER OF SERVICE TAX
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Archana Wadhwa, Member (J) -
(1.)AS the appellant have deposited the entire service tax amount as also interest, I dispense with the condition of predeposit of penalty and proceed to decide the appeal itself inasmuch as a short issue is involved.
(2.)THE appellants were acting as real estate agents for the developers, which activity is liable to service tax. However, during the period 2006 -2008, they were neither collecting any service tax from their customers nor were paying the same. On being pointed out by the Revenue, the entire service tax of Rs. 10,01,767/ - was deposited by them along with interest of Rs. 94,711/ -. Subsequently they were served with the show -cause notice in July 2009 proposing imposition of penalty upon them, which proceedings culminated into the impugned order passed by the authorities below.
The appellants contention is that they were not aware of their liability to pay the service tax. However, on being pointed out by the Revenue, they immediately deposited the amount along with interest, even though they had stopped their business and the service tax was not collected by them. In such a scenario, the contention of the learned advocate is that the provisions of Section 73(3) of the Finance Act would get attracted. In terms of the said provisions, if an assessee deposits the service tax on the basis of tax ascertained by a Central Excise Officer before service of the notice on him, no such notice shall be served to him. As such he submits that inasmuch as he deposited the tax before the issuance of the show -cause notice, there was no requirement of issuance of notice to him.
(3.)ON the other hand, the contention of the learned AR is that sub -section 4 of Section 73 debars application of sub -section 3 in case such short levy was on account of fraud, collusion, wilful misstatement or suppression of facts etc. As such he submits that even if the service tax was deposited before the issuance of the show -cause notice, the penal provisions would still get attracted.
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