TMI Blog2018 (5) TMI 1673X X X X Extracts X X X X X X X X Extracts X X X X ..... djustment of interest free maintenance advance and security deposit towards maintenance charges on month to month basis has been done or not? - demand of service tax - Held that - In respect of interest free maintenance advance, the appellant has admitted the liability for payment of service tax from the date such advance has been received. Such liability has also been paid with interest and we uphold the same. In respect of security deposit, the amounts cannot be included in the consideration as long as the same remains interest free advance to be returned to tenant at a subsequent date - the appellant directed to submit details to the adjudicating authority, duly certified by the Chartered Accountant, to the effect whether security deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common order. 3. With this background, we heard Sh. S. K. Pahwa, ld. Advocate for the appellant and Sh. Sanjay Jain, ld. AR for the Revenue. 4. The demand raised and confirmed by the Revenue is on various grounds which are discussed below:- 4. (i) The appellant received electricity from the Grid and in addition also had the capacity to generate electricity using generators. They supplied electricity from both sources to the tenants of the Mall and the payment therefor was collected by the appellant. But only in respect of the electricity received from the Grid, the charges are paid to the Grid. The Department was of the view that the charges recovered for the electricity generated by the appellant using generators and supplied to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbursement of electricity charges from tenants is to be included in the consideration for payment of service tax in the category of renting of immovable property. The observation of the Tribunal is reproduced below: 9. We have gone through the Lease Agreements. As per the terms and conditions of the Lease Agreements, the tenants have to pay electricity charges directly to the MSEB and the appellants are also providing electricity through generator set in case there is a power failure and the appellants are charging for the same. We find that electricity is specifically covered under Tariff Heading 27 of the Central Excise Tariff Act. We find that as per the provisions of Maharashtra Value Added Tax Act, 2002, electricity is also covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and supplied to the tenant as part of the maintenance agreement. The ld. Advocate has drawn our attention to the fact that in the various years, the total amount of payment to the electric supply undertaking by the appellant is much more than the total amount of electricity charges recovered from the tenants. From the figures, we are unable to come to the conclusion regarding the amount of electricity generated by the appellant and supplied to the tenants by using thereown generating sets. The payment for which is includible in the maintenance charges. In this connection, we direct the adjudicating authority to allow the claim of the appellant with respect to reimbursement of electricity charges from tenants in respect of electric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant admits that the liability for service tax payment is to be computed from the date of receipt of interest free maintenance advance. He further submits that the interest payable on such delayed payment also has been paid by the appellant before filing the reply to the show cause notice. (iii) Ld. AR however submits that the adjudicating authority has recorded that even the security deposit also have been adjusted by the appellant towards maintenance charges in such a case demand for service tax is liable to be upheld. (iv). The Tribunal has considered the question of including the amount of security deposit in the consideration for renting of immovable property service. In the case of Samir Rajendra Shah vs. Commissioner of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatute from 2003, the service of Renting of Immovable Property was included in the statute only from 01.07.2007. For the period prior to 01.07.2007, the Revenue was of the view that the appellant was rendering the taxable service of Maintenance as well as the service of Renting of Immovable Property which was not leviable to service tax. Accordingly, the adjudicating authority has restricted the cenvat credit to 20% of the credit availed by the appellant in terms of the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004, as it existed at the relevant time. (ii). Ld. Advocate submitted that the input services relate to the services sub-contracted by the appellant in respect of maintenance services and no part of the same pertains to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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