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2021 (6) TMI 921 - AT - Service TaxLevy of Service Tax - construction of residential complex services for the period October, 2010 to March, 2014 - advance maintenance charges - club membership charges - amount received on account of cancellation of booking for the period October, 2010 to March, 2012. Construction of residential complex services for the period October, 2010 to March, 2014 - HELD THAT:- It is not in dispute that the constitutional validity of Service Tax on construction of residential complex service has been challenged before the Hon'ble Bombay High Court and the Hon'ble Bombay High Court vide its judgment reported as MAHARASHTRA CHAMBER OF HOUSING INDUSTRY AND ANOTHER VERSUS UNION OF INDIA AND OTHERS [2012 (1) TMI 98 - BOMBAY HIGH COURT] upheld its validity. Now the issue is pending before the Nine Member Bench of the Hon'ble Supreme Court - the issue is remanded to the adjudicating authority for decision on merit on the basis of outcome of the judgment to be delivered by Nine Member Bench of the Hon'ble Apex Court. Advance maintenance charges - Club membership charges - HELD THAT:- It is categorically stated that they can establish before the adjudicating authority about the utilization of the said charges collected for the purpose mentioned in the respective agreement entered with the purchasers as per Maharashtra Ownership of Flats Act, 1963. Prima facie, we find force in the contention of the learned C.A. for the appellant. Therefore, to examine the evidences claimed to have been placed earlier and that would be placed as and when asked by the adjudicating authority to establish the fact of utilization of other charges as per the Act, the matter needs to be remanded to the adjudicating authority for scrutiny of the evidences. Amount received on account of cancellation of booking - period October, 2010 to March, 2012 - HELD THAT:- The learned Commissioner has travelled beyond the scope of allegations labeled in the show-cause notice. There is merit in the contention of the learned AR for the Revenue. The point raised by the appellant in their reply to the show-cause notice that the amended definition of 66E(e) is not applicable to the facts of the present case, since the demand pertains to the period prior to 01.07.2012 was not considered as no specific observation in this regard has been made in the impugned order - this issue is also remanded for consideration. Appeal allowed by way of remand.
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