TMI Blog2019 (1) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.07.2010 is not applicable to Sai Sharnam Project. In respect of Laboni Project the Original Authority has stated that though service provider has referred to certificate issued by architect on 05.05.2010 he will go by the certificate issued by Ghaziabad Development Authority on 13.07.2011. The learned Counsel for service provider has submitted a copy of certificate dated 05.05.2010 issued by architect in respect of Laboni Project stating that the project was complete in all respect. We note that Central Board of Excise & Customs through Circular dated 01.07.2010 had clarified that certificate issued by architect serves the purpose to establish that the project is complete. We, therefore, hold that Laboni Project was also completed before 01.07.2010 - the service tax was not liable to be paid in respect of Laboni Project. The demand of ₹ 34,79,175/- in respect of Sai Sharnam Project and demand of ₹ 1,88,94,825/- in respect of Laboni Project is set aside - demand of ₹ 1,68,37,388/- in respect of Technocity Project and imposition of penalty of ₹ 1,39,200/- under Section 70 of Finance Act, 1994 for late filing of ST-3 returns also set aside - the Orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he service provider for the period from 01.07.2012 to 31.03.2013 was around ₹ 36 crores. The service provider were leveled with the charges that service tax liability in respect of said three projects for the period from 01.07.2010 to 31.03.2014 was around ₹ 10.47 crores. Therefore, through the show cause notice service provider called upon to show cause why service tax around ₹ 11.72 crores should not be demanded from him under proviso to Sub-section (1) of Section 73 of Finance Act, 1994. Further, there was a proposal to deny Cenvat credit of around ₹ 75 lakhs and there were proposals for imposition of penalties. Further, there was a proposal to impose penalty under Section 78 A of the Finance Act, 1994 on Shri Rajeev Arora, Director. On contest, the said show cause notice was adjudicated through the impugned Order-in-Original. The learned Original Authority has dealt with individual issues arising out through the said show cause notice and held as follows:- a. In respect of Sai Sharnam Project at Sirdi in Maharashtra, he has refused the contention of service provider that the project was completed before 01.07.2010. It was contended before him by servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed ST-3 returns for the period from April, 2010 to March, 2014 and has recorded the date of filing of said returns and due to delay in filing of all the said returns he imposed penalty of ₹ 1.39 lakhs under Section 70 of Finance Act, 1994. The learned Original Authority further ordered that the service provider had paid around ₹ 4.17 crores and confirmed liability against the service provider was around ₹ 4.03 crores and therefore, ordered to refund the balanced amount to the service provider. The Original Authority further appropriated the total interest payable which was already paid by the service provider. The learned Original Authority imposed penalty of ₹ 4.03 crores on the appellant. Aggrieved by the said order, service provider is before this Tribunal. Aggrieved by the non imposition of penalty under Section 78A, allowing Cenvat credit to the appellant on services received and not levied service tax on parking charges, external development charges and security charges, revenue is before this Tribunal. 3. Heard the learned Counsel Shri Anurag Mishra alongwith Ms Pragya Pandey, Advocates on behalf of service provider and learned A.R. Shri Pawan K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority for confirmation of demand of around ₹ 1.88 crores in respect of Laboni Project. He has further submitted even if Original Authority has not accepted the said two certificate, during investigation revenue did not bring any positive evidence to establish that there was any construction activity going in either Sai Sharnam Project or in Laboni Project as on 01.07.2010 to discharge its burden of proof for demand of service tax in respect of said two projects. He also submitted a copy of said certificate dated 05.05.2010 in the court. In respect of Technocity Project, the learned Counsel has submitted that they have accepted the service tax liability of around ₹ 1.68 crores and submitted that said project was started in the year 2012 and completed in the year 2017. He further submitted that the Original Authority in para 6.15 of impugned order, has stated that for the period from April, 2010 to March, 2014 service provider had filed all the ST-3 returns. Further, para-20.1 of the show cause notice has stated that from 01.07.2012 to 31.03.2013 service provider had declared gross amount in ST-3 returns as around ₹ 36 crores. He has further submitted that learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Authority has stated that though service provider has referred to certificate issued by architect on 05.05.2010 he will go by the certificate issued by Ghaziabad Development Authority on 13.07.2011. The learned Counsel for service provider has submitted a copy of certificate dated 05.05.2010 issued by architect in respect of Laboni Project stating that the project was complete in all respect. We note that Central Board of Excise Customs through Circular dated 01.07.2010 had clarified that certificate issued by architect serves the purpose to establish that the project is complete. We, therefore, hold that Laboni Project was also completed before 01.07.2010. We, therefore, hold that service tax was not liable to be paid in respect of Laboni Project. We, therefore, set aside the demand of ₹ 34,79,175/- in respect of Sai Sharnam Project and demand of ₹ 1,88,94,825/- in respect of Laboni Project since revenue could not bring out any positive evidence to establish that any activity of construction in respect of said two projects took place after 01.07.2010. We do not interfere in confirmation of demand of ₹ 1,68,37,388/- in respect of Technocity Project and imposi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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