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TMI Blog2016 (5) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise (Appeals) & Customs, Noida. 2. The brief facts are that during the scrutiny of ST-3 Returns for the period October, 2011 to March, 2012, it was seen that the said returns have been filed late and there was a delay of 255 days and the appellants failed to submit their half yearly service tax return during the period April, 2011 to September, 2011 also in time. It further appeared that the service tax have not been paid in time and the same was paid after delay of some months. It further appeared to Revenue that the appellants have claimed abatement (for material component) without mentioning any Sl.No. of the Notification No.01/2006-ST dated 01.03.2006 read with Notification No.29/2010-ST. It appeared that such abatement is not availa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on merit as for the subsequent period from April, 2012 to June 2012, under similar facts and circumstances vide OIO No.07/Comm/ST/GZB/2015-16 dated 27.11.15 passed by the Commissioner of Customs & Central Excise, Ghaziabad, the proposed demand have been dropped, allowing the claim of abatement of 75% of the gross value of receipt for the same service i.e. construction of residential complex service. He further explains regarding delay, that pursuant to service of Order-in-Appeal on 21.04.2015, Mr.Niksan Tyagi, ld.Advocate was engaged and had given a reply dated 28.04.2015 for acceptance of assignment for filing the appeal, within time. Thereafter, due to his health reason, Mr.Niksan Tyagi, vide letter dated 10.07.2015, has expressed his di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the delay has been adequately explained. Further, I find that there is a good case on merit in favour of the appellant. Accordingly, the delay is condoned and the COD application is allowed for extending consionable justice to the appellant. 5.1 At this stage, it is relevant to notice the findings of the ld.Commissioner as given in Order-in-Original dated 27.11.2015, under similar facts and circumstances, dropped the proposed demand, for the material components and allowed the abatement, as under : "6.3 From the terms and clauses of the above agreement, it is evidently clear that the party are owner of plot No.20-21, Dhanpat Colony,Village-Pasounda, Pargana Loni, Dist.-Ghaziabad having total area of 6769.28 sqm which is being deve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land. In the Circular No.334/1/2010-TRU dated 26.02.2010 issued by the CBEC, it has been clarified that in some cases at the initial stage, instruments are created between the promoter and all the prospective buyers (which may include a person who has provided the vacant land for the construction), known as Sale of Undivided Portion Of The Land. This instrument transfers the property right to the buyers though it does not demarcate a part of land, which can be associated with a particular buyer. Since the vacant land has lower value, this system of legal instrumentation has been devised to pay lesser stamp duty. In many cases, an instrument called Construction Agreement is parallely executed under which the obligations of the promoter t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Notification No.01/2006-ST dated 01.03.2006 are fulfilled in the instant case. Hence, I do not find any reason to deny the benefit of Notification No.01/2006-ST dated 01.03.2006 to the party, so far it relates to availment of abatement of 25%." 5.2 Accordingly, agreeing with the findings of the ld.Commissioner (Appeals), I allow the appeal and set aside the impugned order. The appellant will be entitled to consequential benefits in accordance with law. 5.3 So far penalty under Rule 7 (C) of Service Tax Rules, 1994 read with Section 70 of the Act, is concerned, the same is reduced to Rs. 10,000/-. Penalties imposed under Sections 76 & 78 of the Act, are set aside. 5.4 However, cost is imposed of Rs. 20,000/-. The appellant is require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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