2009 (8) TMI 616

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..... [Order per: P. Karthikeyan, Member (T)]. - This application seeks waiver of pre-deposit of the following dues adjudged against the appellants. (a) Service tax as under:- Category Amount Period of dispute Health Fitness Rs.18,22,024/- 16-8-2002 to 31-3-2006 Real Estate Agency Rs.5,26,235/- 1-10-2001 to 31-3-2006 Maintenance or Repair Rs.8,72,968/- 16-6-2005 to 31-3-2006 Excess availment of Cenvat Credit Rs.36,41,830/- 1-12-2005 to 28-2-2006 (b) Interest on the above amounts under Section 75 of the Finance Act 1994 (the Act). (c) Equal amount of penalty imposed under Section 78 as the tax demanded and penalties imposed under Sect .....

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..... various other services found to have been rendered by the appellants are discussed below: 4.1 Health Fitness service:- The appellants have provided gym in the residential complex and charged the owners of the flats for constructing the gym. The consideration received for construction of the gym is part of the price of the flats sold. We find that the taxable activity under "Health Fitness service" means service for physical well being such as, sauna and steam bath, Turkish bath, solarium, spas, reducing or slimming salons, gymnasium, yoga, meditation, massage (excluding therapeutic massage) or any other like service. Provision of health fitness ser vice attracts Service tax. This is, as per definition, provided by a "Health Club .....

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..... at owners. There were circulars of the CBEC on reimbursable expenditure as not forming part of value. The appellants' claim that they bona fidely believed these amounts to be not part of taxable value and therefore the demand is barred by limitation cannot be ignored. The payments involved, we find, are reimbursement of expenditure and not consideration received by the appellants for any service. Therefore, this demand is also apparently not sustainable. 4.4 Cenvat Credit:- As regards demand for recovering Service tax credit availed in excess of 20% on the ground that the appellants had rendered taxable as well as exempted services, we find that the exempted services found is construction of flats built for the land owners of the land .....

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