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2009 (8) TMI 616

..... of complex services. The appellants were found to have rendered various other services without paying tax due. In this case (Tri-Bang) waives pre-deposit of the adjudged dues and stay recovery thereof. - ST/445/2009 - 1292/2009 - 4-8-2009 - S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) Shri G.Shivadass , Advocate, for the Appellant, U. Raja Ram, DR, for the Respondent. [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 .....

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..... D. The main activity of the appellants i.e., construction of flats and sale by the appellants apparently does not involve any taxable service. Any ancilliary activity forming part of the math activity carried out under works contract cannot also be subjected to tax. The 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, .....

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..... nable. 4.3 Maintenance or Repair services:- The appellants maintain flats constructed till the maintenance is transferred to the association of owners of the flats. Till such time the flats are maintained by the appellants recovering the expenses incurred from the flat 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 re .....

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