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2015 (10) TMI 578 - CESTAT MUMBAI

2015 (10) TMI 578 - CESTAT MUMBAI - TMI - Management, Maintenance or Repair Service – appellant had collected an amount from the prospective buyers in respect of maintenance or repairs form residential units as also the commercial units - Held That:- No service tax liability arise on the appellant under the category ‘Management, Maintenance or Repair Service' for the amounts collected by them from the prospective flat owners – No penalty is imposed as such under GTA as well as ‘Management, Maint .....

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1 dated 29/06/2011 passed by the Commissioner of Central Excise, Thane-I. 2. The issue involved in this appeal is regarding service tax liability on the appellant under the category of GTA service for the period January 2005 to September,2007 and service tax on the other category of Management, Maintenance or Repair Service' for the period June 2005 to September 2007. The adjudicating authority has come to the conclusion that the appellant having collected an amount from the prospective flat .....

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authority has confirmed the demands raised along with interest and also imposed penalties. 3. Learned Chartered Accountant appearing on behalf of the appellant would take us through the findings recorded by the adjudicating authority and submits that, as regards the demand on GTA services, they concede the same as the amount being very negligible. As regards the demand of service tax under Management, Maintenance or Repair Service', it is his submission that the issue is now squarely covere .....

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ntenance or repair service to the buyer. It is his submission that identical view has been taken by the bench in the case of Goel Nitron Constructions vs. Commissioner of Central Excise, Pune - III - Appeal No. ST/185/09-Mum, ST/307/10-Mum & ST/308/10-Mum. 4. The learned Departmental Representative, on the other hand, submits that the appellant had collected an amount from the prospective buyers in respect of maintenance or repairs form residential units as also the commercial units. It is h .....

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d and confirm the tax liability along with interest. 6. As regards service tax liability under the category of "Management, Maintenance or Repair Service"under Section 65(64) of the Finance Act, 1994, during the period 2006-07, we find that there is no dispute as to the fact that the amount are collected by the appellant from prospective buyers for maintenance of the units sold to them till the prospective buyers come together and form a cooperative hosing society. It is the case of th .....

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d to make payment relating to Revenue assessment, insurance, all other taxes, levies, electricity and water charges and deposits in respect of common electrical and water pumps and other installations. In addition they are paying for the maintenance and repair of common areas and facilities, wages or watchmen, sweepers etc. and some expenses relating to maintenance of the housing blocks. 6.2 We have also gone through the relevant provisions of the Maharashtra Ownership Flats (Regulation of the P .....

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the formation of co-operative society or a company, or towards the outgoings (including ground rent, if any, municipal or other local taxes, taxes on income, water charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any); and he shall hold the said moneys for the purposes for which they were given and shall disburse the moneys for those purposes and shall on demand in writing by an officer appointed… SECTION 06: RESPONSIBILITY FOR PAYMENT O .....

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to the organization of any such persons. Where any promoter fails to pay all or any of the outgoings collected by him from the persons who have taken over flats or are to take over flats, before transferring the property to the persons taking over the flats or to the organization of any such persons, the promoter shall continue to be liable, even after the transfer of the property, to pay such outgoings and penal charges (if any) to the authority or person to whom they are payable and to be res .....

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tenance or repair"means any service provided by - (a) Any person under a contract or an agreement; or (b) A manufacturer or any person authorized by him in relation to - (i) Maintenance or repair including reconditioning or restoration, or servicing of any goods or equipment, excluding motor vehicle; or (ii) Maintenance or management of immovable property. 6.4 We also note that the appellants are not in the business of maintenance or repair service or management of immovable property. The a .....

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