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2024 (3) TMI 130 - CESTAT ALLAHABADLevy of service tax - Interest Free maintenance Security (IFMS) - Lease Rent and Capital Replacement Fund - SCN issued only on the basis of audit objection without any further investigation in the matter - time limitation - HELD THAT:- The show cause notice has been issued only on the basis of audit objection without any further investigation or enquiry. Even the figure of amount received and the demand of service tax has been made on the basis of figures indicated in the audit objection. Revenue has not even cared to look and verify the correctness of these figures by examining the source documents. None of these documents are even relied upon by in the show cause notice. In case of SWASTIK TIN WORKS VERSUS COLLECTOR OF CENTRAL EXCISE, KANPUR [1986 (3) TMI 192 - CEGAT, NEW DELHI], it was held that we find that there is no evidence whatsoever that the goods that were actually cleared by the appellants were metal containers in unassembled form and not, as claimed by the appellants and already approved by the Department, in the shape of cut-to-size sheets meant for bottoms and bodies of metal cans. Though the demand can be set aside on this preliminary observation, it is found that demand is also not sustainable on the merits. Interest Free maintenance Security (IFMS) - HELD THAT:- It was held in the case of M/S KDP INFRASTRUCTURE PVT. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE & SERVICE TAX, GHAZIABAD [2018 (11) TMI 984 - CESTAT ALLAHABAD] that the security deposits collected by the Builder for providing maintenance to immovable property services would not be taxable under the category of ‘Management Maintenance or Repairs Services’. Lease Rent and Capital Replacement Fund - HELD THAT:- From the perusal of the extract of the audit report it is evident that in case of Lease Rent, appellant had taken categorical stand at the time of audit itself that this amount was to be transferred to NOIDA authority as such. This stand of the appellant has not been countered either in the show cause notice, order in original or order in appeal. This amount was not towards any service provided by the appellant. However without specifying the purpose of this amount both the lower authorities have concluded that this amount is towards, renting of immovable property service - Nothing has been stated in the above audit note in respect of the capital replacement fund. Even show cause notice do not specify anything in this respect. Assistant Commissioner have concluded that these services are classifiable are the category of Business Auxiliary Services and Commissioner (Appeal) do not specify under which taxable category he intends to classify the services provided by the appellant against this amount - Since impugned order upholds the order of the Assistant Commissioner, it is presumed that he agrees with the classification made by the original authority. However there are no basis in either of the order for classifying these services under this category. Appellant have already paid service tax on these amounts by classifying them under the category of Construction of Residential Complex Service after availing the abatement as provided by Notification No 29/2010-ST dated 22.06.2010. Time limitation - HELD THAT:- The audit of the unit was conducted on 04.12.2012, 05.12.2012 and 10.12.2012 and the audit report was issued on 05.04.2013. The show cause notice in this case has been issued to the appellant on 19.10.2016, without specifying any ground for invocation of extended period. When this show cause has been issued without any further investigation or enquiry then there can be no reason for invoking extended period of limitation from the date of audit. There are no merits in the impugned order - appeal allowed.
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