Order Date – 10 January 2023

Parties: M/s. Sumeru Builders Vs C.C.E. & S.T.-Rajkot

Facts –

• The appellant M/s. Sumeru Builders were engaged in building of residential complex and in terms of clarification issued by CBEC 108/02/2009-ST-F.No. 137/12/2006-CX.4 dated 29.01.2009 they were exempted from the payment of service tax in the capacity of “Builders”.
• Finance Act was amended in 2010 and with effect from 01.07.2010 the liability to pay service tax arose on builders.
• As Appellant had certain doubts regarding liability of builder to pay service tax and therefore, they did not immediately start paying service tax. Summons were issued to the appellant in the month of April, 2011. The appellant voluntarily discharged service tax amounting to Rs.13,71,476/- along with interest of Rs.47,925/-, late fee of Rs.2,000/- on 18.04.2011 and 20.04.2011 through various challans. He  argued that they had also filed ST-3 returns on 20.4.2011.
• Still a show cause notice was issued denying the benefit of Section 73(3). Although, they had paid the entire tax liability along with interest before issuance of show cause notice
• Revenue argued that benefit of Section 73(3) has been denied mainly on the ground that the appellant had discharged the service tax liability on cum tax basis in terms of Section 67(2) of the Finance Act, 1994.

Issues –

• Whether the appellant is entitled to the benefit of Section 73(3)?

Order –

• The Tribunal held that no evidence has been produced by the revenue to hold that the amount collected by the appellant is exclusive of service tax or it has been separately collected by the appellant. In view of the above, we do not find any merit in the department’s stand that benefit of Section 67(2) could not be extended.
• The Tribunal also held that the appellant discharged the entire service tax along with interest soon after the same was pointed out and in this circumstance the benefit of Section 73(3) should not have been denied.
• The appeal is allowed to the extent that the penalty imposed on the appellant is set aside. Appeal is disposed of.