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2016 (6) TMI 367 - CESTAT NEW DELHIRepair and Maintenance Service - liability of the agent or principal - leasing of Govt. land and consideration received towards Maintenance Charges and Street Light Charges - Demand of Service tax alongwith interest - Held that:- there is no doubt that the service was provided by the appellant in relation to maintenance or repair of immovable property in terms of the written agreement ('lease deed') and therefore is covered under Section 65(64) ibid both prior to 01.05.2006 and with effect therefrom. Thus, the service rendered by the appellant is squarely covered in the definition and we, therefore hold that the activities carried out by the appellant are taxable under MMR (or MR) service [Section 65 (64) ibid]. The charges collected by the appellant are on account of the said taxable service provided by it and therefore constitute consideration for taxable service. Once the taxable service is being provided against a consideration, service tax becomes payable. Thus the liability to pay service tax is either on the assessee himself or the agent of assessee. In the present case, the appellant is a company incorporated under Companies Act, 1956 and acted as agent on behalf of the Chhattisgarh Govt. which authorised it to lease out land to prospective entrepreneurs for setting up industry, etc. and to provide various services on behalf of State Govt. and it accordingly is covered under the definition of assessee. Invokation of extended period of limitation - Imposition of penalty - Section 76 & 78 of the Finance Act, 1994 - Wilful mis-statement of facts - Held that:- mere non-disclosure of the facts to the department can sustain the said allegation. In view of various case laws, the extended period of limitation is not invocable in the present case, which renders (part of) the demand pertaining to the 'extended' period beyond the normal period time-barred and penalty under Section 78 ibid non-imposable. The adjudicating authority has clearly held that penalty under Sections 76 and 78 ibid are imposable but penalty under Section 76 is not imposed as penalty under section 78 is imposed. As a corollary it follows that if penalty under section 78 ibid is not found imposable, penalty under section 76 would spring bad to life. However, we also note that the adjudicating authority waived the penalty prescribed under Section 76 ibid under Section 80 of Finance Act, 1994 by invoking extended period of limitation. - Decided partly in favour of appellant
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