TMI Blog2016 (5) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice to the appellant. Disallowance of abatement claim and imposition of service tax - Held that:- it is relevant to notice the findings of the ld.Commissioner as given in Order-in-Original, under similar facts and circumstances, dropped the proposed demand, for the material components and allowed the abatement. Accordingly, agreeing with the findings of the ld.Commissioner (Appeals), the impugned order is set aside. Imposition of penalty - Rule 7(C) of Service Tax Rules, 1994 read with Section 70 of the Act - Held that:- the penalty is reduced to ₹ 10,000/-. Penalties imposed under Sections 76 & 78 of the Act, are set aside. Also the appellant is required to deposit the amount of ₹ 20,000/- to the Prime Minister’s Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was proposed to disallow the abatement claim and the impose the service tax on the same for the Financial Year 2011-12, whereby, demand of tax of ₹ 48,20,988/- with interest and further penalty was proposed under Sections 76 78 and penalty was also proposed under Rule 7 (C) of Service Tax Rules, 1994 read with Section 70 of the Act, for late filing of ST-3 Returns. 2.1 Vide OIO dated 26.08.2014, the SCN was adjudicated by the adjudicating authority and the proposed demand was confirmed along with interest and further penalty was imposed under Section 76 being ₹ 100/- for every day of default or 1% of the tax per month and penalty of ₹ 48,20,988/- was also imposed under Section 78 and further penalty of ₹ 20,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s difficulty for not filing the appeal in time and requested the appellant to make alternative arrangement, for which, a copy of Medical Certificate of Mr.Niksan Tyagi, is also placed on record. Thereafter, the appellant immediately engaged another Counsel, who is attached with M/s Vineet Rathi Associates on 17.07.2015 about three or four days before end of limitation period. It is also explained by the ld.Counsel for the appellant that when he went to file the appeal before CESTAT, New Delhi on 01.09.2015, the ld.Counsel came to know at the time of filing of appeal, that the said Appeal has to be filed before the Regional Bench, at Allahabad. The ld.Counsel filed the appeal at CESTAT, Allahabad Bench, on 09.09.2015 in person. He also sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s being developed by them for construction of complex. It is stipulated in the Agreement that the party will sell flat of the specified area at mutually agreed price and the buyer will purchase such flat. It shows that the Agreement is for sale of completely constructed flat. It means that the party are engaged in construction of a complete flat and not completion and finishing activities. It is thus established that the first condition of the notification, as discussed above, is fulfilled. 6.4 It is observed that the Agreement is for sale of a flat, not for the construction of flat. When a constructed flat is sold, it is obvious that value of all materials and goods would be part of the price of that flat. A perusal of the Agreement r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the promoter to get property constructed and that of the buyer to pay the required consideration are incorporated. The tenor of the Agreement in the instant case, as discussed above, clearly indicates that there is no mention of sale of land separately. It is found that the Agreement is for sale of flat, not for construction only. It is thus evident that price of the flat is inclusive of cost of land. 6.6 As regards taking Cenvat Credit, it is found from the ST-3 Returns for the period April, 2012 to June, 2012, copy of which has been submitted during the personal hearing, that the party have not taken Cenvat credit. The due service tax has been paid in cash. Thus, it is proved beyond doubt that the party have not taken Cenvat cred ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
