TMI Blog2016 (7) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... be stated that, that shall be liable to tax and what that is done by the learned adjudicating authority is proper. The Infrastructure Charges paid to TNEB and incurred by the appellant directly as well as reimbursed to it, is not in relation to any services provided by the appellant to its clients. Therefore, in the absence of any taxing entry to tax such receipts the appellant is not liable to service tax thereon. The Cenvat credit denied pertains to the input credit taken by the appellant for use thereof in manufacture of the generators. The generator not being liable to duty by virtue of exemption, appellant is liable to pay back entire credit taken to the State with interest. It is made clear that utilisation of the credit sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 009 was taxed raising demand of ₹ 3,24,52,209/- on the ground that no tax was paid on such taxable service provided; (iii) The licence fee paid to the TNEB for infrastructure development has been sought to be taxed under Finance Act, 1994 for the period 10.09.2004 to 31.03.2009 raising tax demand of ₹ 7,63,33,154/-; (iv) Land development charges, which are in the nature of Transfer of Immovable Property has been sought to be taxed for the period 10.09.2004 to 31.03.2009 raising tax demand of ₹ 2,32,94,425/-; and (v) Denying Cenvat credit for the period 01.10.2006 to 31.03.2008 demand of ₹ 4,70,91,013/- has been levied. 3.1 Explaining on the above said disputes, learned counsel submits that in so far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, the Development Charges shall be out of the ambit of taxation under the provisions of the Finance Act, 1994. Further explaining the issue, learned counsel submits that the appellant as a contractor pays the Infrastructure Charges to TNEB first on behalf of the client and gets reimbursement thereof form by clients. 6. So far as land development Charges are concerned, it was explained that the lands are first acquired by the appellant and, thereafter, transfer thereof made to the clients and on such lands generators are installed. The transaction ipso facto shall be transaction under Transfer of Property Act and by no stretch of imagination that shall be brought to the scope of Finance Act, 1994, since no service is provided in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest on utilised credit, that shall be governed by the judgment of the Hon ble Madras High Court in the case of Commissioner of Central Excise, Madurai Vs Strategic Engineering (P) Ltd., reported in 2014 (310) E.L.T.509 (Mad.). 8. Revenue on the other hand supports the adjudication and on each count of dispute submits that Revenue has based its findings on proper examination and tax liability determined appropriately. 9. Heard both sides and perused the records. 10. The appellant was the contractor as well as supplier of the generator manufactured by it. So far as no duty liability on generator is concerned that is not in dispute in the present appeal since duty was exempt thereon. The appellant while supplying the generator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in relation to any services provided by the appellant to its clients. Therefore, in the absence of any taxing entry to tax such receipts the appellant is not liable to service tax thereon. 13. So far as Land Development Charges is concerned, factually it appears that these charges are for acquisition of land and re-transfer thereof. There is no material on record to show that whether any land development was made by the appellant on behalf of its client. Once such element is absent, the appellant cannot be brought to the taxing entry of Real Estate Developer. The transfer of property transactions are governed by Transfer of Property Act. Therefore, there shall be no liability for the period 10.09.2004 to 31.03.2009 on such count ..... X X X X Extracts X X X X X X X X Extracts X X X X
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