TMI Blog2015 (6) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... r the amended lease deed dated 29.03.2011, the building was only let out for ₹ 55,000/- per month and the rest of the amount was only on account of the rent of the immoveable plant and machinery, which was moveable and not covered under the Act, prima facie, cannot be accepted. The Adjudicating Authority has noticed that a consolidated ledger account is being maintained and that there is no breakup for the different heads of land and building and the plant machinery and the agreement dated 29.03.2011 was not registered under the Registration Act, 1908. Court is not inclined to interfere with the discretion which has been exercised and where the benefit of pre-deposit has been restricted to a reasonable amount, in favour of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal is perverse and contrary to facts and circumstances of the case? c) Whether the impugned order is justified when the appellant has strong prima facie case on merits? 3. The reasoning given by the Tribunal was that the rent note executed by the appellant showed that the building, plant and machinery along with other infrastructure had been rented out and therefore, fell within the renting of immoveable property and was, thus, exigible to service tax. 4. A perusal of the paperbook would show that a show cause notice dated 19.06.2009 was issued to deposit the service tax amounting to ₹ 10,28,160/- along with interest on account of the fact that during the audit conducted on M/s Kapsons Industries, Jalandhar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , apart from the demand of ₹ 31,86,820/- along with penalty of ₹ 200/- per day, during which, such failure continued, apart from the penalty of ₹ 5000/- and an equivalent penalty also under Section 78. 6. The appellant filed an appeal before the Commissioner (Appeals) and filed an application praying for waiver of the penalty as prescribed under Section 35F of the Act. The plea taken that the service tax was not liable to be paid since the rent amount had been divided into two heads, one of land and building and the other for plant and machinery, was rejected as the same had never been disclosed during the audit. The plea that the demand was time barred was also rejected as the fact had never been disclosed to the Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the audit of M/s Kapsons Industries, the factum of the violation had been detected and in such circumstances, no question of law arises which would require consideration by this Court. 9. The unamended provisions of Section 35F of the Act provide that the Appellate Tribunal should take into account the factum of undue hardship of the appellant and may dispense with such deposit, subject to the conditions it may deem fit, to impose, so that the interest of the Revenue can be safeguarded. The said provisions read as under: SECTION 35F. Deposit, pending appeal, of duty demanded or penalty levied. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Act, prima facie, cannot be accepted. The Adjudicating Authority has noticed that a consolidated ledger account is being maintained and that there is no breakup for the different heads of land and building and the plant machinery and the agreement dated 29.03.2011 was not registered under the Registration Act, 1908. The Commissioner (Appeals) has, prima facie, considered the stand of the appellant and granted the benefit of waiver regarding the pre-deposit of interest and penalties imposed and noticed that there was no undue hardship. 11. The amended rent deed whereby the rent was fixed at ₹ 7,00,000/- per month, which was divided into two accounts, for land and building to the tune of ₹ 55,000/- and ₹ 6,45, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforementioned in each year at the office or the premises as 'The Lessor' may require or fix in this behalf from time to time. 12. Counsel for the appellant has admitted that the property is spread over one acre of land in Jalandhar and in such circumstances, the submission that it was not covered under the definition of immoveable property and does not come within the ambit of service tax, cannot be accepted. This Court would not interfere in the discretion which has been exercised by the authorities under the Act, in view of the facts and circumstances of the present case. The authorities were able to detect the amount of evasion of tax on the basis of the audit conducted on a sister concern and the extended period of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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