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M/s River Builders Pvt. Ltd. Versus Commissioner of Central Excise, Ghaziabad

2016 (5) TMI 308 - CESTAT ALLAHABAD

Condonation of delay - delay of 48 days in filing the appeal - Appellant contended that delay was occured due to misplacement of the copy of O-I-O - Commissioner (Appeals) rejected the appeal observing that he has no power to condone the delay beyond the period of 30 days - Held that:- it does not appear to be a deliberate lapse on the part of the appellants. It is further found that the delay has been adequately explained. Therefore, there is a good case on merit in favour of the appellant. Acc .....

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ed 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 Relief Fund within a period four weeks from the date of receipt a copy of this Order and file compliance report. - Decided in favour of appellant wit .....

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14-15 dated 27.02.2015 passed by Commr. of Central Excise (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 .....

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erest 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 ₹ 48,20,9 .....

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erving that he has no power to condone the delay beyond the period of 30 days. The delay was admittedly of 48 days. 2.3 Being aggrieved, the appellants have preferred an appeal before this Tribunal, which is also with delay of 50/51 days. 3. The ld.Counsel appearing for the Appellant, explains that they have a good case 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 Commiss .....

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reason, Mr.Niksan Tyagi, vide letter dated 10.07.2015, has expressed his 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 t .....

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ned and appeal may be decided on merit, in the interest of justice to the appellants. 4. The ld.A. R. for the Revenue relies on the impugned order. He further states that the appeal was rightly dismissed by the ld.Commissioner (Appeals) as there has been a limitation of power to condone the delay under the Act. 5. After hearing the rival submissions, I find that the delay before this Tribunal and before the ld.Commissioner (Appeals) for 50/48 days, under the facts and circumstances , it does not .....

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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 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 purc .....

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of the price of that flat. A perusal of the Agreement reveals that there is no clause relating to free supply of materials by the buyer or for separate sale of material used in the construction of flat. From the terms of the Agreement, there is no doubt that the value of goods and material was included in the price of the flat to be sold. Therefore, the second condition for availing the benefit granted under the said notification is also fulfilled. 6.5 It is noticed that in the Agreement, it is .....

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romoter 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 Agreemen .....

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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 credit. 6.7 The last condition for availing the benefit of the aforesaid notification is that they have not taken benefit of Notification No.12/2003-ST dated 20.06.2003 which provides exemption from service t .....

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