TMI Blog2019 (8) TMI 1696X X X X Extracts X X X X X X X X Extracts X X X X ..... frastructure Pvt Ltd. It is now well settled law that, for a service to be taxable prior to 1st July 2012, conformity with the enumerations in section 65 (105) of Finance Act, 1994, comprising description of activity, identified recipient and consideration for such service, is unavoidable. The assigning of land to M/s Goldbrick Infrastructure Pvt Ltd was contingent upon the vendor being paid the value bid by the appellant in which there seemed to be no further role for the appellant. M/s Goldbrick Pvt Ltd did not have to bear the cost of tendering met by the appellant but, owing to the circumstances of the interlinked transactions, that was merely considered to be payment made by the appellant to the vendor for rights over the structures ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record to establish that the costs incurred approximated the sale value. Consequently, the receipt from sales is consideration for the sales and not for service. The existence of consideration for service is not on record. There being neither recipient of a service nor any consideration for a service, the impugned order lacks authority of law and a set aside - Appeal allowed - decided in favor of appellant. - SERVICE TAX APPEAL NO: 89460 of 2014 - A/87572 / 2019 - Dated:- 27-8-2019 - MR C J MATHEW, MEMBER (TECHNICAL) AND DR SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri SP Mathew, Advocate for the appellant Shri Dilip Shinde, Assistant Commissioner (AR) for the respondent ORDER As the proposition of Revenue, embedde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... morandum of understanding (MoU) , between 2008-09 and 2011-12 by the appellant was alleged to be liable to tax for rendering of site formation and clearance, excavation and earthmoving and demolition service as enumerated in section 65(105)(zzza) of Finance Act, 1994 and defined in section 65(97a) of Finance Act, 1994 to include demolition and wrecking of building among other activities. The tax liability was computed as ₹ 52,28,129, in accordance with section 73(2) of Finance Act, 1994 for accommodating the tax within the consideration when it is not charged separately from the recipient, in the proposal for recovery under Finance Act, 1994. 4. Commissioner of Central Excise Customs Nagpur confirmed the demand under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to uphold the order of the adjudicating authority. 7. The appellant had commenced the generation and removal of scrap in June 2008 after the possession was handed over to M/s Goldbrick Infrastructure Pvt Ltd by the vendor in February 2008 and in pursuance of memorandum of understanding (MoU) dated 20th July 2007, well before the tender process was completed, between themselves and M/s Goldbrick Infrastructure Pvt Ltd. It is now well settled law that, for a service to be taxable prior to 1st July 2012, conformity with the enumerations in section 65 (105) of Finance Act, 1994, comprising description of activity, identified recipient and consideration for such service, is unavoidable. 8. The tax, as proposed in the show cause notice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em, M/s Goldbrick Infrastructure Pvt Ltd was not, by any stretch, owner of anything other than the land. The appellant appears to be correct in claiming that they had merely removed their property from the premises of M/s Goldbrick Infrastructure Pvt Ltd. Though, such removal effectively permitted the latter to have access to the property, it does not appear to have been provided to them. 11. The assigning of land to M/s Goldbrick Infrastructure Pvt Ltd was contingent upon the vendor being paid the value bid by the appellant in which there seemed to be no further role for the appellant. M/s Goldbrick Pvt Ltd did not have to bear the cost of tendering met by the appellant but, owing to the circumstances of the interlinked transactions, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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