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2019 (11) TMI 248 - CESTAT NEW DELHIClassification of services - facilitation service by appointing a facilitation manager to supervise and manage the management and maintenance of immoveable property - whether classified under ‘Real Estate Agent Services’ or ‘Real Estate Consultant Services’? HELD THAT:- The services involved in the present appeal are services in relation to horticulture, housekeeping and cleaning, rent-a-cab operator, supply of manpower, maintenance of immovable property, security, pest control. Out of the aforesaid services, the Appellant deposited Service Tax for services in relation to security and rent-a-cab for the reason that they were taxable services. In regard to maintenance and immovable property services, the Appellant started paying Service Tax w.e.f 16 June 2005 from which date it became a taxable service. Regarding the remaining services, the Appellant did not pay Service Tax as the Appellant claimed that the amount was reimbursed. Section 67 of the Act deals with valuation of taxable services for charging Service Tax. Sub-section (1) of section 67 provides that where Service Tax is chargeable on any taxable service with reference to its value, then such value shall, where the provision of service is for a consideration in money, be the gross amount charged by the service provider for such service provided or to be provided by the service provider. It is, therefore, clear that only such amount is subject to Service Tax which represents consideration for provision of service and any other amount which is not a consideration for provision of service cannot be subjected to service tax. No Service Tax could have been levied in regard to the aforesaid services namely, horticulture, housekeeping and cleaning, supply of manpower and pest control. Valuation - expenses incurred in relation to “maintenance of immovable property services” - Real Estate Consultant Services - HELD THAT:- When the nature of service provided by the Appellant is specifically covered by the amendment made in the definition of management and maintenance of immoveable property w.e.f. 16 June 2005, the Appellant could not have been subjected to payment of Service Tax under the category of ‘Real Estate Agent Services’ since the definition of ‘Real Estate Agent Service’ had not undergone any change. Cenvat Credit reversal in excess of 20% of the tax payable - HELD THAT:- The Commissioner has failed to appreciate the contentions advanced on behalf of the Appellant in the correct perspective nor is there any discussion on this issue. The imposition of penalty and interest upon the Appellant under this issue has, therefore, be considered afresh. Appeal allowed in part and part matter on remand.
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