TMI Blog2018 (8) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... city charges etc. The same has been rendered after collection of actual amount spent for payment of this deposit/fees/base area on behalf of 120 flat owners - thus, this payments are only actual charges paid to the various statutory bodies and for electricity maintenance in common area and the same is therefore, not liable to service tax and if so, abatement is available to them under the Service Tax Law. Principles of Natural Justice - Held that:- The adjudicating authority has passed not speaking order without discussing the submissions made by the Appellant and passed very cryptic order and has not quantified the demand in respect of penalty imposed under Sections 75, 77 of the Act and Rule 15 of Cenvat Credit Rules, 2004 - the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994 (hereinafter referred to as the said Act) respectively read with Rule 2 (1)(d)(i) of Service Tax Rules, 1994 (hereinafter referred to as said Rules). It is alleged that the appellant has failed to discharge the service tax liability of ₹ 4,51,936/ as service provider and therefore, the same is recoverable under Section 73 (1) of the Act along with interest under Section 75 of the Act respectively and also liable to penalty under Section 77 of the Act. The appellant has also availed and utilized cenvat credit wrongly to the extent of ₹ 46,814/- in contravention of Rule 3 (1) of Cenvat Credit Rules, 2004 before payment of bill value (which includes service tax) to the input service provider. The said amount is recoverab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed documentary evidences such as, bank statements submitted by the appellant. It has simply done that the appellant has not adduced the documentary evidences in support of their claim and for refund of amount. It was also held by the ld.Commissioner (Appeals) to show that the amount was collected earlier and payment of any services, such as, Guest House or Community Centre etc.. The ld.Advocate further submitted that the appellate authority has held that the appellant is providing Builder s Special Service as provided in Section 65 (105)(zzzzu) of the Act. He is of the view that the Revenue has proceeded against the baseless allegations because the amount collected by them from the residence of the flat owners, has been taken towards the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade thereunder with intent to evade payment of duty,... . In other words the conditions that would extend the normal period of one year to five years would also attract the imposition of penalty. It, therefore, follows that if the notice under Section 11A(1) states that the escaped duty was the result of any conscious and deliberate wrong doing and in the order passed under Section 11A(2) there is a legally tenable finding to that effect then the provision of Section 11AC would also get attracted. The converse of this, equally true, is that in the absence of such an allegation in the notice the period for which the escaped duty may be reclaimed would be confined to one year and in the absence of such a finding in the order passed under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant is rendered by various services, which the Revenue is attempting to classify under the Builders Special Services classifiable under Chapter Heading 65(105)(zzzu) of the Finance Act,1994. On going through the various documents enclosed in the appeal memorandum, as such, agreement of sale, bank statement, bills provided by the various vendors, we find that the appellant has returned excess amount to the flat owners after collection of various fees, as such, Association formation deposit, Common meter deposit, common maintenance deposit, common electricity charges etc. The same has been rendered after collection of actual amount spent for payment of this deposit/fees/base area on behalf of 120 flat owners. 7. In view of the above, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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