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2020 (2) TMI 349 - AT - Service TaxValuation - management, maintenance or repairs or not - activity of providing parking facility in the Malls - whether the Mall owners receive any payment or consideration from the appellant or not - extended period of limitation - HELD THAT:- Section 67(1)(i) clearly stipulates that where the consideration is not wholly or partly consisting of money, it would be such amount in money as, with the addition of service tax charged, is equivalent to the consideration. Further, in Section 67(1)(i) consideration has be taken as the gross amount charged by the service provider. Thus, there is no doubt that the right to collect parking fees given by the mall owners is nothing but a consideration provided to the appellant by the mall owners and the measure of such consideration is the gross income generated through the parking fees. The learned Counsel for the appellant has sought to repudiate the liability on the impugned activity by contending that they are merely operating the parking area which is different from the service of ‘management maintenance and repairs’. We are not inclined to accept this distinction because as far as the business activity is concerned qua the appellant, it is operation of the parking area but when this activity is examined qua the mall owners they are providing the service of ‘management, maintenance or repairs’ to the mall owners. Extended period of limitation - HELD THAT:- There was a clear mis-declaration and wilful suppression in as much as the appellant has suppressed the income of parking fees in the relevant returns with an ulterior motive to evade the service tax. They have wilfully designed their mode of operation to evade the service tax - the extended period is invokable in the case. The levy of service tax on the activity under ‘management, maintenance or repair service’ is upheld - However, the appellant will be entitled to avail Cenvat credit of service tax paid by the service providers and cum duty benefit - The penalties under Section 78 of Finance Act, 1994 need to reworked accordingly - case remanded back to the Adjudicating Authority to re-determine the taxable demand, interest and penalties - appeal allowed partly by way of remand.
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