TMI Blog2018 (11) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... is no denial of fact that the levy in question was imposed for the first time by the amendment to Finance Act 1994 with effect from 1/07/2010 to Section 65(105) (zzzh). The Notification No. 136/2010 as impressed upon by the appellant is perused. It becomes clear that vide the said Notification the advance receipt by a builder till 30th June 2010 for which service was provided by him after 30th June 2010 was not to be taxed thereby qualifying that services of appellant were not taxable prior 1/07/2010. When the explanation as inserted in Section 65(105)(zzzh) is read along with clarification given by CBEC vide letter No. 334/3 TRU dated 1/07/2010, it again becomes amply clear that if agreement is entered into or any payment is received f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and suppression are not at all attributable. For the similar reason penalty also will not ordinarily to be imposed unless the party either acted deliberately in defiance of law and was guilty of dishonest conduct - penalty also set aside. The matter is sent back to the Adjudicating Authority below for the limited purpose of computing the demand after affording the abatement of the extent of 75 per cent - appeal allowed by way of remand. - Appeal No ST/53124/2015- (DB) - Final Order No.53282/2018 - Dated:- 31-8-2018 - Mr. C.L. Mahar, Member (Technical) And Mrs. Rachna Gupta, Member (Judicial) Shri Sandeep Mukherji, CA for the appellant Shri Vivek Pandey, (DR) for the respondent ORDER Per: Rachna Gupta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant that the impugned order has adjudicated two show cause notices for total period with effect from 1/4/2007 to 31/3/2013. It is impressed upon that till 30th June, 2010 there was no liability upon the builder to pay any service tax upon the amount received prior giving possession of the constructed property to their clients, it is only after explanation under Section 65(105)(zzzh) Finance Act, 1994 was incorporated which into effect from 1/7/2010 that the builders are liable to pay the same. It is impressed upon that the demand as confirmed for the period prior 31st June, 2010 is apparently wrong and is liable to be set aside. With respect to the remaining demand it is submitted that the appellant were entitled for abatement at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 6. After hearing both the parties and perusing the record we observe and hold as follows; 7. The fact of the present case is that the appellant is a builder engaged in construction activity that under heavy financing scheme where the appellant are receiving payments in phases over years. It is also an admitted fact that the appellants were paying the service tax at the stage of final allotment of the constructed residential/Commercial unit after the payment received from the buyers along with taxes at the said final stage. In view of these admitted facts the core issue to be adjudicated is as to whether the appellants were required to pay the service tax on the amount received by them from the prospective buyers, In advance. 8. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th effect from 1/07/2010 is prospective in nature as it expands scope of taxable service provided by the builder to buyer pursuant to intended sale of property to be during or after the construction. It was classified in this decision that in such case there is no liability on the assessee to remit service tax under the then existing legislative reason that is either under Section 65(38) read with Section 65(91) (a) of the Finance Act taxable under Section 65(105) (zzq). In another recent adjudication by Tribunal Bangaloor in the case of Vinayaka Homes 2016 (43) STR 251 it was held that activity squarely falling under construction of residential complex service is not liable to service tax prior to 1/07/2010 in case of phased payments. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant is held to be entitled for the abatement at the rate of 75 per cent. The computation at the rate below is an error apparent, as such the same is liable to be re-computed the matter needs to be remanded for this limited purpose. 12. Finally coming to the issue of invoking the extended period of limitation and imposition of penalty on ground of alleged suppression we observe that the department has alleged appellant to have deliberately mis-represented the fact with intent to evade payment of service tax but it is simultaneously apparent fact that the present is not the case of non payment of service tax the allegation is that the service tax is not paid at the time of receipt of the first instalment from the property buyer but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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