TMI Blog2014 (9) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of “Commercial or Industrial Construction Service” and “Site Formation and Clearance Service” along with interest thereon (excluding the amount already deposited). Renting of immovable property - Held that:- Only if vacant land exists as it is without any building, the exclusion clause would apply. The fact that the area of the land appurtenant to the building being more than the area of the building would not make any difference. The Ld. Adjudicating authority has dealt with this matter in detail in paras 88 to 90 of the impugned order and we do not find any fault in the reasoning adopted by the adjudicating authority. Therefore, the demand of service tax in respect of the land and building rented to M/s. Reliance Industries Ltd. is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st assessee. - ST/1566/2012-CU(DB) - Misc. Order Nos. 20027-20028/2014 - Dated:- 1-1-2014 - G. Raghuram, President and Shri P.R. Chandrasekharan, Member (T) Shri B.V. Kumar, Advocate, for the Appellant. Shri N. Jagdish, Superintendent, for the Respondent. ORDER The appeal and the stay petition arise from Order-in-Original No. VIZ-STX-001-COM-064-12, dated 30-3-2012, passed by C.C.E. S.T., Visakhapatnam-I Commissionerate. 2. Vide the impugned order, a service tax demand of ₹ 1,94,33,169/- has been confirmed against the appellant under the category of Renting of Immovable Property service towards the said services provided during 1-6-2007 to 31-3-2011. Another demand of ₹ 36,30,661/- has been confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous to the building is not liable to service tax as it is a separate entity in itself and is not appurtenant to the building and therefore, in terms of sub-clause (b) of clause (iv) to the Explanation-1 of Section 65(105)(zzzz) of the Act, the appellant is not liable to pay service tax as the said clause excludes vacant land, whether or not having facilities clearly incidental to the use of such vacant land . As regards the agreement entered into with M/s. Avinash Automobiles Pvt. Ltd., it is their submission that here also the demand is not sustainable as what was rented was only vacant land where they constructed a shed. They are liable to service tax only with effect from 1-7-2010 when clause (v) was inserted in the Explanation to provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with interest thereon and only the amounts actually paid by them and appropriated has to be excluded for the purposes of recovery. Therefore, we direct the appellant to make pre-deposit of entire service tax confirmed in respect of Commercial or Industrial Construction Service and Site Formation and Clearance Service along with interest thereon (excluding the amount already deposited). 5.2 As regards the service tax demand of ₹ 1.94 crores on Renting of Immovable Property Service , the contention of the appellant has been examined. Section 65(105)(zzzz) reads as follows :- to any person, by any other person in relation to renting of immovable property for use in the course or furtherance of business or commerce. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Explanations, land appurtenant to building would be immovable property. Only if vacant land exists as it is without any building, the exclusion clause would apply. The fact that the area of the land appurtenant to the building being more than the area of the building would not make any difference. The Ld. Adjudicating authority has dealt with this matter in detail in paras 88 to 90 of the impugned order and we do not find any fault in the reasoning adopted by the adjudicating authority. Therefore, the demand of service tax in respect of the land and building rented to M/s. Reliance Industries Ltd. is prima facie, sustainable in law. 5.3 As regards the land and building rented out to M/s. Avinash Automobiles Pvt. Ltd., we note that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt of Delhi in the above decision. In view of these judicial pronouncements, there is no doubt that the activity undertaken by the appellant is a taxable service and has always been so with effect from 1-6-2007. Further, in the Finance Act, 2012, a provision was made for waiver of penalty in case a service provider discharged the service tax liability along with interest in respect of renting of immovable property service within a stipulated time-limit. But, the appellant did not exercise their option for availing this facility. Having failed to avail of the opportunity, the contention for waiver of penalty is not acceptable. 6. In the light of the above analysis, we are of the prima facie view that the appellant has not made out any ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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