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2018 (2) TMI 835

Demand - Collection in the name of service tax - Construction activity - works contract service - revenue contented that the terms of the contract clearly stipulate that Service Tax is included in the consideration - invocation of Section 73A (2) of FA - Held that: - the appellant did establish that they have not collected any amount in any manner representing Service Tax. The existence of clause in the contract to the effect that it will include Service Tax by itself will not give any inference .....

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tion of interest payment on such non-existing tax liability. - Appeal allowed - decided in favor of appellant. - ST/56833/2013-[DB] - A/58644/2017-CU[DB] - Dated:- 13-12-2017 - Mr. S.K. Mohanty, Member (Judicial) And Mr. B. Ravichandran, Member (Technical) Present Shri B.L. Narsimhan & Rachit Jain, Advocate for the appellant Present Shri Amresh Jain, AR for the respondent ORDER Per: B. Ravichandran 1. The present appeal is against the order dated 10/01/2013 of Commissioner, Central Excis .....

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e. Various penalties were also imposed. There is also a third issue regarding liability of the appellant for an interest amount of ₹ 6,79,414/- for delayed payment of Service Tax on construction of residential complexes in Noida. 2. The Ld. Counsel appearing for the appellant contested all the three issues. He submitted on the following lines. a. The appellant entered into an agreement with IOC for expansion project of township of Panipat. The contract stipulated as a standard clause that .....

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or from IOC. This will show that they have not represented any amount as Service Tax and the recipient of service is fully aware that they are not paying any amount representing Service Tax to the appellant. c. On the second issue regarding construction of stadium/ practice venue for Common Wealth Games at JMI University, New Delhi he submitted that the sports facility developed specifically for practicing for Common Wealth Games cannot be considered as a commercial construction. Even after Comm .....

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bility under the said tax entry. The municipal authorities of Noida providing water supply does not make the existence of common facility within the approved layout. However, they are not contesting the already paid tax. Since the tax itself is not payable, the interest question for delay will not arise. 3. The Ld. AR strongly contested the submission of the appellant. He submitted mainly on the following lines. a. The provision of Section 72 A (2) readwith Section 73 A (6) makes it very clear t .....

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vice tax under the provisions of this Chapter or the rules made there under, and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of this Chapter or the rules made there under from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected to the credit of the Central Government. (2) Where any person who has collected any amount, which is not required to b .....

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tion (4) shall be adjusted against the service tax payable by the person on finalization of assessment or any other proceeding for determination of service tax relating to the taxable service referred to in subsection (1). (6) Where any surplus amount is left after the adjustment under sub-section (5), such amount shall either be credited to the Consumer Welfare Fund referred to in section 12C of the Central Excise Act, 1944 or, as the case may be, refunded to the person who has borne the incide .....

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ld be representing or equated to a Service Tax by direct evidence. In this connection, we refer to the decision of the Tribunal in the case of Prabhu Dayal Kanojiya V/s Commissioner of Central Excise, Jaipur (2014-TIOL-1279-CESTAT-DEL) wherein the Tribunal observed as below:- 5. Section 73 A of the Act enumerates provisions for liability to remit service tax collected by a person. Subsection (2) of this provision enacts: where any person, who has collected any amount, which is not required to be .....

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73A(2) read with sub-section (4) thereof. Sub- section (4) specifically enjoins that an order should be passed under this provision only after considering the representation, if any, made by the person on whom the notice is served under sub-section (3) and to determine the amount due from such person, not being in excess of the amount specified in the notice. Subsection (3) of Section 73(A) requires a notice to be issued to show cause why the amount, as specified in the notice, in respect of a l .....

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but a tax collected in some manner. 7. The emphasis of the Revenue is on the terms of contract which stipulated the contract consideration shall include Service Tax. In the present case the appellant did not discharge any Service Tax. In fact, they had all along had a view that no Service Tax is liable to be paid. In such situation it is noted that the present proceedings regarding application of Section 73A (2) is substantially based on inference with no supporting evidence. In this connection .....

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ter there is no case of the department that excisable goods have come into existence at the hand of the appellant and that such duties were leviable and therefore, they should have been taken to have been provided for when the lump sum price was quoted. Further the Tribunal in Himatsingka Seide Ltd. V.s CC, Bangalore [2005 (191) ELT 885 (Tri.-Bang.)] held as below:- In the present case also, the sale price, no doubt, includes all statutory levies payable. That means, after some time the seller s .....

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are collected for admission into the stadium. We note that collection of fee and charges for use of the stadium does not make the stadium as a commercial building. In this connection we refer to B.G. Shirke Construction Technology Pvt. Ltd. V/s CCE, Pune-II [2014 (33) STR 77 (Tri. Mumbai)] where a similar situation of construction of sports complex came up for decision before the Tribunal. The Tribunal held that merely because some amount is charged for using the facility will not make the facil .....

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the water supply made by Noida Municipal Authority is the main instance quoted for concluding the fact that common facilities are being shared. As held by the Tribunal in Hari Narain Khandelwal V/s CCE & ST, Jaipur-I [ 2017 (5) TMI 897-CESTAT, New Delhi] the common facility for tax entry under residential complex service should be within the premises of the approved layout where such activities are carried out. Availability of common facilities like street light, sewage line, park, common w .....

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