TMI Blog2011 (5) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... x - As such, in respect of the amount of Rs.37,43,887/-, the appellants have made out a prima-facie case in favour of waiver of predeposit. As regards the tax demand of Rs.1,12,45,661/- Demand has been made in respect of construction of premises that the appellants have made for the land owners - Appellants have agreed that the construction done for the land owners is taxable service - Held that:- As explained by the revenue, in the course of hearing, the Department has adopted the value of land owners' portion of the constructed building on the same basis as has been done for the other part of the building which has been constructed for the individual buyers - While doing so, the Department has also allowed abatement of 67%. - Revenue has also demonstrated that the demand made by the Department is limited to only such portion of the landowners' share of the constructed building which have been done after the levy came into force and not for the earlier period - Prima-facie, find that the value adopted by the Department has a basis and the same cannot be stated to be prima-facie un-reasonable - Decided against the assessee. - ST/S/347/2009, ST/578/2009 - 481/2011 - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Larsen Toubro Ltd. Vs. CESTAT reported in 2010 (20) STR 163 (Del.) and that the said decision in BSBK (supra) has been followed by several Division Benches of the Tribunal, for example in : (i) Alstoms Project India Ltd. Vs. CSGT, New Delhi : Final Order No. ST/97/2011 dated 14.3.11 by CESTAT, New Delhi (ii) Instruments Ltd. Vs. CCE, Jaipur : Final Order No. ST/98/2011 dated 14.3.11 by CESTAT, New Delhi (iii) M/s B Rama Rao Company Vs. Commr, of Customs, Excise Service Tax, Hyderabad IV : (iv) M/s G.R. Natarajan Vs. CST, Chennai : 4. Apart from that, the Larger Bench of the Tribunal following various judgements of the Hon'ble Supreme Court, has taken a view that at the prima-facie stage, while considering stay petition, a Bench cannot make a reference to the Larger Bench when it has itself not taken a final view in the matter, which is obviously not possible to take at the stage of passing of an interim order. This view has been consistently taken by the Larger Bench of the Tribunal as may be seen from the following cases : (i) SAIL Vs. CCE, Raipur : 2010 (256) ELT 737 (Tri.-LB) (ii) Amit Sales Vs. CCE, Raipur : 2010 (257) ELT 424 (Tri-LB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand has two major components. An amount of Rs.37,43,887/- relates to the amount received prior to 10.9.2004 in respect of services rendered after that day. The appellants are claiming exemption in respect of this amount in terms of Notification 18/2004-S.T. dated 10.9.2004. The said Notification reads as under : In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts that portion of the value of taxable services which are defined in sub-clauses zzm, zzn, zzo, zzo, zzq, zzt, zzu, zzv, zzw, zzx and zzy of clause 105 of Section 65 of the said Act, from the whole of service tax leviable thereon under section 66 of the said Act, which is received by the service provider from the customer, exhibitor, client or any person, as the case may be, prior to the 10 th day of September, 2004. 9. It is clear from the plain reading of the Notification that the service tax is exempted in respect of that portion of the value of taxable services which was received by the service provider prior to 10.9.2004. Hence, the appellants' ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CDR, in the course of hearing, has also demonstrated that the demand made by the Department is limited to only such portion of the landowners' share of the constructed building which have been done after the levy came into force and not for the earlier period. In support of his submissions, he has also submitted a letter from the respondent Commissioner dated 19.4.2011 along with his written submissions dated 27.4.2011.Moreover, we find that the value adopted by the adjudicating Commissioner cannot be said to be exorbitant or high considering the prevailing rates in Chennai. For example, in one of the cases, the ld. Jt. CDR during the course of hearing pointed out that the per sq/ft value of constructed office area including proportionate land cost came to only about Rs.2250/- per sq/ft and the Department has only charged service tax on the portion representing the value of construction. On the whole, prima-facie, we find that the value adopted by the Department has a basis and the same cannot be stated to be prima-facie un-reasonable. The arguments that the Valuation Rules for the service tax purposes, have been framed only w.e.f. 18.4.2006 and therefore, for the preceding period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slature recognizes the possibility of overlapping entries and that is why Section 65A providing for classification of taxable services has been introduced under the Finance Act, 1994, by the Finance Act, 2003. 13. We find that the arguments raised before us to the effect that since works contract service has been introduced w.e.f. 1.6.2007, hence the construction service cannot be charged to tax before that date, have been raised earlier before other Benches of the Tribunal. The argument has been comprehensively dealt with in the case of M/s B Rama Rao Company (supra) by the Bangalore Bench of the Tribunal holding that the construction services were taxable to service tax prior to 1.6.2007. While coming to this decision, the Bangalore Bench of the Tribunal has taken into account the earlier decisions of the Tribunal in the cases of Diebold Systems (P) Ltd. Vs. CST, Chennai: 2008-TIOL-489-CESTAT-MAD, Sunil Hi-tech Engineers Ltd. Vs. Commissioner of Central Excise : 2009-TIIOL-1867-CESTAT-MUM, Daelim Industrial Co. Ltd. Vs. CCE, Vadodara : 2003-TIOL-110-CESTAT-DEL as well as the Larger Bench decision in the case of BSBK (supra). In this connection, we extract below paragraph 5.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Instruments Ltd. (supra). 15. The appellants have also taken the ground of limitation. However, we find that the question of limitation has been dealt with in detail by the adjudicating commissioner in Paragraph 9 of his order. We also find that there was delay on the part of the appellants by not furnishing necessary details, in the absence of which, the Department could not have calculated the tax amount and issued demand notice earlier, apart from the fact that the appellants have delayed tax payment and have not paid differential tax amount during the relevant period. Hence, we are of the prima-facie view that the appellants do not have a case on the ground of limitation. 16. In view of the foregoing and also taking into account the facts that :- (i) the appellants have got themselves registered and have paid the service tax on the construction services during the relevant period, and that the present demand is only limited to differential tax amount, (ii) the different Benches of the Tribunal have held that the tax on the construction services for the impugned period is payable, (iii) the same has not been declared ultra vires by any superior Court, (iv) the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X
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