TMI Blog2018 (2) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 - Whether service tax is to be recovered from the appellant under Section 73(1) of the Finance Act, 1994 for leveling of soil including of gorges/nallah, removing of shrubs, grass and ruble at Sahara City Homes, Baharaich as per agreement dated 03/11/2003? - Held that: - the site formation and excavation and earth moving and demolition service was introduced in the service tax net on 16/06/2005 and the agreement entered between the respondents with M/s Sahara India dated 03/11/2003 expected the work to be finished within a period of 2 months, which is much prior to 16/06/2005 - demand set aside. Appeal dismissed - decided against Revenue. - ST/CROSS/3188 & 3329/2012, ST/653 & 2099/2012-CU[DB] - Final Order Nos.70102-70103/2018 - Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they came to know that the appellants would be able to procure the land for them. On being approached by Sahara Group, the appellants offered the land belonging to various small land owners. The appellants promised Sahara Group that they would be able to negotiate and purchase the land from the owners. Thereafter a MOU was drawn up and executed on 30/10/2003. The average rate agreed upon between the two parties was ₹ 4.56 Lacs per acre which shall include all cost of land and development expenses etc. The difference between the average rate and the amount actually paid to the landowner was payable to the appellants. Though in the MOU, originally it was agreed upon that all payments to the land owners were to be made by Sahara Gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax is to be recovered from the appellant under Section 73(1) of the Finance Act, 1994 for leveling of soil including of gorges/nallah, removing of shrubs, grass and ruble at Sahara City Homes, Baharaich as per agreement dated 03/11/2003? (iii) Whether penalties u/sec 76, 77 78 of Finance Act, 1994 are to be imposed? The appeal was decided in favour of the respondents by observing as under:- 4.2 Regarding first issue, I have examined the facts of the instant case, documents submitted by the appellants, which were also submitted to the Adjudicating Authority. We find that the appellants, have acquired approximately 116.4504 acre of land for which the total amount of ₹ 5,31,01,382/-@ ₹ 4.56 lakhs/acre was to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to a subject exclusively reserved for States under the Constitution of India. The Larger Bench of Hon ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. Anr. Vs. UOI Ors. reported in 2006 (2) STR 161 (SC-LB) has held that once it is possible to bifurcate in any transaction the sale or the service portion, the respective tax to be levied on the respective portions only. The Central Board of Excise and Customs has clarified in Para-13.6 of their Letter F. No. B1/6/2005-TRU, dated 27/07/2005 The taxable service is the service provided in relation to construction of a residential complex. Service tax would be payable only on the gross amount charged by the service provider for the construction service provided and it would not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussed above, it is on record that the appellants have received only ₹ 4,96,14,500/- (including amount of ₹ 57,75,000/-) from M/s SICCL, which were spent in land purchasing and registry charges, thus the question of receipt of the amount ₹ 57,75,000/- against the said agreement does not attract merit. 4. Being aggrieved with the said order Revenue has filed the appeal. Going through the impugned order we find that the first issue stands decided by Commissioner (Appeals) by following the Hon ble Supreme Court order. He has also held that any amount received by the assessee from Sahara India would be treated as service and liable to service tax. We find no infirmity in the above view of the Appellate Authority, inas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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