TMI Blog2019 (5) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to avail cenvat credit of service tax paid by the owners of the property. Demands made under CICS / CCS - Period Post-01.06.2007 - HELD THAT:- The demands relating to composite works contract along with interest for the period 2008-09 cannot sustain in view of this Bench decision in REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST CENTRAL EXCISE, CHENNAI [ 2018 (9) TMI 1149 - CESTAT CHENNAI] and same will require to be set aside - Although there is an allegation that appellants have wrongly adjusted excess service tax paid, it has been clarified by the appellants that they have not adjusted any excess service tax paid by them, rather, they have not paid service tax on the amounts received during the period from May 2008 to March 2009 as these amounts have been appropriated towards cost of the land sold - The allegation of the department that irregular adjustment has been done by the appellants fails to convince us. Demands made under CICS / CCS - denial of abatement on the ground that the appellant had availed cenvat credit - HELD THAT:- The demands relating to composite works contract along with interest f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r annexures to the SCN along with interest as also imposition of penalty under various provisions of law. (iii) In adjudication of both the SCNs, the Commissioner vide a common Order-in-Original No.53 54/2011 dt. 25.11.2011 confirmed the aforesaid demands along with interest and imposed penalty Section 78 in respect of SCN dt. 24.06.2009 and penalty under Section 76 in respect of SCN dt. 23.10.2009. He also imposed penalty of ₹ 5000/- under Section 77 ibid. Hence Appeals ST/258/2012 ST/259/2012. 2.2 When the matter came up for hearing, on behalf of the appellants, Ld. Advocate Shri G. Natarajan submitted that most of the demands confirmed in the aforesaid impugned order to these appeals now stands covered by the decision of Supreme Court in the case of CCE Vs Larsen Toubro Ltd. 2015 (39) STR 913 (SC) and of the Tribunal decision in Real Value Promoters Pvt. Ltd. Vs CCE - 2018-TIOL-2867-CESTAT. 2.3 Ld. Advocate s contentions in respect of the item wise / annexure wise demands that were confirmed in respect of ST/258/2012 is as under : (i) Demand of service tax of ₹ 94,62,842/- under Commercial or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN No. Date Period of Demand Details of Demand Amount confirmed in the order Rs. i. 597/2009 dt. 23.10.2009 2008-09 Demand under CICS 59,08,138 ii. -do- -do- Demand under CCS 1,06,22,800 iii. -do- -do- Demand under CICS 7,39,011 iv. -do- -do- Demand under CCS 3,45,27,514 v. -do- -do- Alleged adjustment of excess service tax paid, which is not permissible. 61,04,851 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IV to SCN Demand of ST under CCS Service provided to buyers Prince Residenzia (abatement denied on the ground that the appellant had availed cenvat credit) ₹ 2,66,03,013 5 -do- October 2011 to March 2012 Annexure V to SCN Demand of differential ST under CCS for the period Oct 2011 to Mar 2012 Service provided to buyers Prince Residenzia (abatement denied on the ground that the appellant had availed cenvat credit) ₹ 77,28,508 6 -do- April 2010 to March 2012 Annexure VI to SCN Prince Village I Residential Demand of interest for delayed payment of ST Apr 10 to Mar 12 ₹ 3,69,76,010 (Since paid and not disputed) ₹ 57,41,432 (Interest) 7 -do- April 2009 to March 2012 Annexure VII to SCN Prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the demand is not clearly mentioned. Hence he prays for remand of the matter on the issue of interest liability of these amounts. 2.8 As regards Sl.No.10 (₹ 16,19,255/-) pertaining to reimbursable expenses collected from tenants for electricity, water, diesel etc., he placed reliance on Apex Court s judgment in UOI Vs Intercontinental Consultants and Technocrats Pvt. Ltd. - 2018 (10) GSTL 401 (SC). 2.9 As regards demand amount of ₹ 11,57,494/- shown in Sl.No.11 above, they are not disputing this demand and have paid the same with interest of ₹ 37,448/-. 3.1 So also in Appeal ST/1/2012, the details of SCN, period of dispute, disputed amounts etc. as furnished by Ld. Advocate are tabulated as under : S.NO. SCN NO DATE PERIOD DETAILS OF DEMAND OIO AMOUNT CONFIRMED 1 148/2007 DT. 23.08.2007 corrigendum dt.04.1.2008 October 2004 to July 2006 Annex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total ₹ 1,31,22,953 3.2 Ld. Advocate submits that demands and interest raised vide Sl.No. 1, 2, 4 to 8 under the category of CICS / CCS are for the period pre-1.6.2007, hence the issue stands squarely covered by Apex Court decision in L T Ltd. (supra). He prays that following the ratio already laid down in these decisions, Appeal ST/1/2012 may be allowed in respect of these demands. 3.3 As regards amount of ₹ 24,09,527 (Sl.No.3), allegedly collected as corpus fund , he submits that the said amounts are received from buyers of flats and it would be passed on to the owner s association and hence it is not a consideration for service. He relies on the following case laws : (i) Vijayashanti Builders Ltd. Vs CST 2018 (9) GSTL 257 (Tri-Chennai) (ii) Kumar Beheray Rathi Vs CST - 2014 (34) STR 139 (Tri.-Bom.) (iii) CCE Vs Sri Krishna Chaitanya Enterprises - 2018 (14) GSTL 533 (Bom.) 3. On the other hand, Ld. A.R Shri A. Cletus supports the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. Vs CST 2018 (9) GSTL 257 (Tri.-Chennai) (ii) Kumar Beheray Rathi Vs CST - 2014 (34) STR 139 (Tri.-Bom.) (iii) CCE Vs Sri Krishna Chaitanya Enterprises 2018 (14) GSTL 533 (Bom.) Hence, following the ratio laid down in the case laws cited supra, that part of the order to the contrary is set aside and appeal is allowed on this score with consequential benefits, if any, as per law. 5.4 Demand made under RIPS: Appeal No.ST/258/2012 Demand ₹ 11,68,534/- with interest under RIPS SCN No.256/2009 dt. 24.06.2009 Impugned Order-in-Original No. 53/2011 dt. 25.11.2011 Period: Post-01.06.2007 (June 2007 to March 2008) As regards this demand raised under Renting of Immovable Property Service, we find merit in the Ld. Advocate s plea for remand of the matter to the original authority to substantiate their claim that they are entitled to avail cenvat credit of service tax paid by the owners of the property. Appeal ST/258/2012 is remanded only on this score to original authority. However, considering that the matter was mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the allegation of the department that irregular adjustment has been done by the appellants fails to convince us. Be that as it may, as per the abstract of demand annexed to the show cause notice, an amount of ₹ 61,04,851/- has been sought to be demanded as differential service tax on commercial construction . This being the case, the ratio of the decision in Real Value Promoters (supra) will also apply to this demand. In the result, that portion of the impugned order confirming the above demands in respect of Appeal ST/259/2012 will not sustain and will require to be set aside, which we hereby do. Appeals ST/259/2012 on the above issues is allowed with consequential benefits, if any, as per law. 5.6 Demands made under CICS / CCS : (i) Appeal No.ST/40901/2014 Demand ₹ 9,20,20,954 with interest under CICS (short payment) SCN No.124/2013 dt. 20.04.2013 Impugned OIO No.1/2014 dt. 04.02.2014 Period: April 2009 to March 2012 Project: Prince Info City-II [landowner share] (ii) Appeal No.ST/40901/2014 Demand ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal ST/40901/2014 Demand ₹ 3,69,76,010 under WCS SCN No.124/2013 dt. 20.04.2013 Impugned OIO No.1/2014 dt. 04.02.2014 Period: April 2010 to March 2012 Project: Prince Village Interest liability: ₹ 57,41,432/- (ii) Appeal ST/40901/2014 SCN No.124/2013 dt. 20.04.2013 Impugned OIO No.1/2014 dt. 04.02.2014 Period: April 2009 to Sept 2011 Project: Prince Residenzia Interest liability: ₹ 33,54,564/- [according to assessee] ₹ 32,13,230/- [as per Annex to SCN] Appellants are not contesting these demands and have paid up the same also. However, interest liability of ₹ 57,41,432/- and ₹ 33,54,564/- has apparently not been paid up. Appellants have submitted that there are some errors in the computation of interest liability and pleaded for a remand of the matter for quantification of the correct interest liability. We also note that Annexure VI of the connected SCN indicates the interest liability as ₹ 32,13,230/-, against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that grounds for this demand is not clear. However, from para-6 of the SCN No.124/2013 dt.20.4.2013 (page 9), raison d etre of the said demand has been amplified and it has been clearly mentioned that demand relates to short payment of service tax under Renting of Immovable Property Service (RIPS) under the category of letting out of premises by assessee to their clients namely 3i Infotech, CSS Corp, Optimus Global Syntel etc. In consequence, the plea of the appellants that demand not clear does not have any merit. We therefore do not find any reasons to interfere with the said demand. Appeal in this regard is therefore dismissed. (iii) Demand of service tax under WCS, RIPS MMRS. Appeal ST/40901/2014 Demand ₹ 11,57,494 under MMRS with interest ₹ 37,448/- not disputed and already paid. SCN No.124/2013 dt. 20.04.2013 Impugned OIO No.1/2014 dt. 04.02.2014 Period: July 2010 to March 2012 Appellants have not disputed the tax liability and have paid up the entire tax liability as also part of interest amount of ₹ 37,448/-. They are only seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andowners under joint agreement. SCN No.148/2007 dt. 23.08.2007 read with corrigendum dt. 4.1.2008 OIO No.23/2011 dt. 26.08.2011 Project : Kandanchavadi Project (vii) Appeal No.ST/1/2012 Demand ₹ 10,11,386/- with interest under CCS SCN No.148/2007 dt. 23.08.2007 read with corrigendum dt. 4.1.2008 OIO No.23/2011 dt. 26.08.2011 Period : April 2007 Project : Prince Green Wood As already held above, the aforesaid demands relating to composite works contract along with interest in respect of Appeal ST/1/2012 for the period 10.09.2004 to 30.04.2007 cannot sustain in view of this Bench decision in Real Value Promoters (supra) and same will require to be set aside, which we hereby do. In the result, that portion of the impugned order confirming the above demands in respect of Appeal ST/1/2012 will not sustain and will require to be set aside, which we hereby do. Appeals ST/1/2012 on this issue are allowed with consequential benefits, if any, as per law. (vii) Appeal No.ST/1/2012 Demand ..... 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