9911796707
TMI Blog2018 (5) TMI 1673X X X X Extracts X X X X X X X X Extracts X X X X ..... overed by two separate show cause notices, covers the period April 2005 to September, 2009 in one of the notices as well as April 2010 to September, 2010 in the second show cause notice. Both the appeals are disposed of by this 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreement with the tenants will be liable to payment of service tax under the category of maintenance. (iv). In the case of ICC Reality India Ltd., the Tribunal had occasion to consider whether the reimbursement 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 fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tenants. However, on a perusal of the agreement entered into by the appellant with the tenants, we note that the tenant is also liable to pay to the appellant for the electricity generated by the 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been adjusted towards the maintenance charges. The service tax already stands paid by the appellant on the amount so adjusted in the month in which such adjustment has happened. But the appellant 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vice tax. The input services claimed include the services procured by the appellant from sub-contractors. Revenue was of the view that though maintenance services were included in the statute 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 ti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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