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TMI Blog2021 (6) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... f equivalent amount was imposed. Hence, the present appeal. 3. The learned C.A. Shri S.S. Gupta for the appellants submits that the confirmation of total demand of Rs. 19,86,44,217/- can be divided into four parts. Around Rs. 15.86 crores relates to levy of Service Tax on construction of residential complex during the disputed period, Rs. 2.04 crores relates to collection of advance maintenance charges and other charges, Rs. 1.92 crores received by the appellants on cancellation of booking and Rs. 3.89 lakhs is confirmed for availing CENVAT Credit of Service Tax paid on rent-a-cab service. He submits that in the present appeal, they do not intend to contest the amount of CENVAT Credit confirmed against them. 3.1 On the issue of construction of residential complex during the said period, he submits that the constitutionality of the levy was challenged by the Maharashtra Chamber of Housing Industry before the Hon'ble Bombay High Court. The Hon'ble Bombay High Court vide judgment reported as 2012 (23) STR 305 (Bom) upheld the constitutionality of the said levy and the appeal against the said judgment is pending before the Hon'ble Supreme Court. Referring to the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S Consturction Pvt. Ltd. Vs. Commissioner of Central Excise & Service Tax, Ghaziabad - 2018 (19) GSTL 277 (Tri-All) and Vijay Shanthi Builders Ltd. Vs. CST, Chennai - 2018 (9) GSTL 257 (Tri-Chennai) in support of their argument that these charges do not attract Service Tax. 3.3 With regard to the confirmation of demand of cancellation of booking amount received by the appellant, he has submitted that the demand pertains to the period March, 2011 to March, 2012. During the said period, the definition of 'taxable service' was provided under Section 65(105) of the Finance Act, 1994. It is his contention that para 31(b) of the show-cause notice does not refer to any of the clauses under Section 65(105) of Finance Act, 1994. It refers to Section 66E(e) of the Finance Act, 1994, which came into force subsequently i.e. after 1st July, 2012. Hence, the allegation in the show-cause notice and consequently confirmation of the demand in the order is unsustainable. Further, he submits that the learned Commissioner has wrongly held at para 10 of the impugned order that taxable service prior to 01.07.2012 means service provided or agreed to be provided and the same is taxable under the category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t issue is concerned, it is not in dispute that the constitutional validity of Service Tax on construction of residential complex service has been challenged before the Hon'ble Bombay High Court and the Hon'ble Bombay High Court vide its judgment reported as Maharashtra Chamber of Housing Industry -2012 (23) STR 305 (Bom) upheld its validity. Now the issue is pending before the Nine Member Bench of the Hon'ble Supreme Court. Taking note of the said circumstances, this Tribunal in Kalpataru Ltd.'s case observed as follows: - "4. Since, the issue of legislative competence for levy of service tax on land and building is sub-judiced before the Hon'ble Apex Court, the present appeals cannot be disposed of on merit at this juncture. Thus, we are of the considered view that the matter arising out of the appeals should be remanded back to the original authority for a decision on merit, subject to ascertaining the outcome of the judgment to be delivered by the Nine Judge Bench of the Hon'ble Apex Court." Following the said precedent, we also remand the issue to the adjudicating authority for decision on merit on the basis of outcome of the judgment to be delivered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the stage, namely, construction of a particular floor, located on which the Flat agreed to be sold to him is constructed, then, full payment would be made by that time. However, the obligation that is carved out by the statute goes beyond this contractual stipulation between the promoter/developer and the Flat purchaser. The law enacts a regulatory mechanism so that there is enough safeguard and protection for such Flat takers and unit purchasers which would ensure to them a title in the property. The title in the building has to be conveyed together with the rights to the land beneath it. The land beneath and appurtenant to the building therefore enables the building owner, namely, a co-operative housing society or a company to enjoy the fruits of the development. When housing accommodation is scarce and there is acute shortage, private participation for removal of this shortage or scarcity is encouraged by the State, but at the same time the Legislature has ensured that there are safeguards and inbuilt protection to the Flat purchasers else they could be exploited by builders and developers. There are often complaints and cases of unscrupulous builders and developers fleecing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Act, 1986 and that would not control the provisions of the Finance Act, 1994, for the simple reason that interest and rights of a consumer are protected and safeguarded by law so as to enable him to complain about deficiency and defect in the service by approaching the Forum under the Consumer Protection Act, 1986 and that law has a distinct objective and purpose. As noted by the Hon'ble Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta, reported in AIR 1994 SC 787, the building and construction activity is a service covered by the expression Service as defined in the Consumer Protection Act, 1986 but that law is not a taxing or fiscal statute. Hence, that definition is of no assistance in construing similar expression in the Finance Act, 1994. The backdrop, setting and the context in which the word or expression and its definition appears is thus different. We are concerned here with a taxable service. The service of maintenance, management or repair, rendered by any person to any other person is a taxable service but in the context and backdrop in which the issue arises before us, we do not think that a taxable service is rendered. The Revenue does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rners of the precedent laid down by the Hon'ble Bombay High Court. It is observed that the appellants have not produced the copy of agreement to show that the maintenance charges are collected in accordance with the provisions of Maharashtra Ownership of Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963. Neither they have produced any details of the bank account to establish that the maintenance charges collected were kept separately in that account and used for the purpose stipulated in the said Act. Rebutting the said finding, the learned C.A. for the appellant has referred to some evidences about maintenance of separate account and stated that the bifurcation provided in the agreement relating to all the specific charges included under the head "other charges" enclosed with the appeal paper book itself evident that these charges are upheld for specific purpose. He submits that even though these evidences were submitted before the authorities below, however, the same was not considered. It is categorically stated that they can establish before the adjudicating authority about the utilization of the said charges collected for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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