TMI Blog2023 (5) TMI 389X X X X Extracts X X X X X X X X Extracts X X X X ..... vity undertaken by preceding developer; the adjudicating authority has rendered clear findings on that which have not been specifically discountenanced in the review. The manner in which statutorily assigned duties and obligations is in consonance with the transactional schema of section 65(105)(zzg) of Finance Act, 1994 is sorely lacking in the grounds to merit serious consideration in appeal. Cum tax benefit - HELD THAT:- The claim of Revenue that cum tax computation is not admissible fails and, more particularly, as the decision of the Hon ble Supreme Court in AMRIT AGRO INDUSTRIES LTD. VERSUS COMMISSIONER OF C. EX., GHAZIABAD [ 2007 (3) TMI 14 - SUPREME COURT] arose from a dispute over exclusion of central excise duty in computation of assessable value and the difference between a levy at the stage of manufacture and a levy that is destination-based precludes that as precedent. This issue is, therefore, no longer res integra and the adjudication order passes muster on this score. Exclusion of ₹ 2,48,85,135, claimed to have been paid for electrical energy and water consumption on behalf of the owners by the respondent, from tax liability on provisional outgoing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 5,46,673 under section 73 of Finance Act, 1994, along with applicable interest under section 75 of Finance Act, 1994, and imposed penalty of like amount under section 78 of Finance Act, 1994 while limiting confirmation in the second notice to ₹ 12,540 under section 73 of Finance Act, 1994, along with applicable interest under section 75 of Finance Act, 1994, besides imposing penalty of ₹ 750 under section 76 of Finance Act, 1994 and confirming the entire ₹ 19,208 under section 73 of Finance Act, 1994, along with applicable interest under section 75 of Finance Act, 1994, besides imposing penalty of ₹ 1000 under section 76 of Finance Act, 1994 in the third notice. Thus, the impugned order dropped demand of ₹ 5,50,78,372 for 2008-09 to 2011-12 and ₹ 8546 for 2012-13. No appeal has been filed by M/s Habitat against the confirmed portion of demand. 3. The appeal filed on review by Committee of Chief Commissioners, under the authority of section 86 of Finance Act, 1994, is limited to the first two notices as the demand in the third notice has been confirmed in full. Of the several heads against which amounts were collected, the grounds of appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned. 6. On collections made towards corpus fund for club house and corpus fund for complex and apex body , the appellant contends that the adjudicating authority had accepted the claims of lesser receipt of ₹ 5,42,80,000 and 4,34,24,000, against ₹ 21,53,40,325 and ₹ 17,23,25,200 incorporated in the notice, to limit taxability to ₹ 1,44,062 representing net assessable value after deduction of tax from ₹ 1,61,868 being the amount expended from unutilized balance of ₹ 9,75,42,132 recorded in profit and loss account for 2014-15. Likewise, on other advances and deposits , the claim of assessee of lesser collection of ₹ 8,50,024 against ₹ 19,43,624 was accepted and valuation for liability limited to ₹ 7,58,557 to restrict tax to ₹ 91,467 for 2008-09 to 2011-12 and to levy of ₹ 12,540 on ₹ 1,01,460 after excluding the tax component from total deposit of ₹ 1,14,000 for 2012-13. 7. The dispute is, thus, restricted to less collection of tax of ₹ 77,775 owing to cum-tax benefit extended and to the extent that expenditure of ₹ 2,48,85,135 from out of provisional outgoing for deposit and adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to discharge obligations to public authorities undertaking municipal and utility functions and, therefore, any collection towards such expenses is compensation for payments for such services. 10. A contention in the grounds of appeal that the amendments to section 65(105) and section 67 of Finance Act, 1994 with effect from 16th June 2005 for incorporating to be provided to supplement provided has the effect of intendment to tax advances is specious, to say the least, and is based on less than adequate understanding of legislative intent. To read the expression provided or to be provided sans taxable service is to inverse cart and horse juxtaposition; it is necessary to demonstrate that an activity fitting within taxable service has or will occur before attributing any payment thereof as consideration liable to levy. Mere compilation of statutory provisions is no substitute for such determination to be placed before the appellate authority. Lack thereof prompts discard of that ground. 11. There is no conclusion either in the ground in which non-applicability of the decision in Kumar Beheray Rathi v. Commissioner of Central Excise, Pune III [2014 (34) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in Idea Cellular Ltd v. Union of India [2017 (4) GSTL 4 (P H)], upon taking note of the judgement of the Hon ble Supreme Court in Idea Mobile Communications Ltd v. Commissioner [2011 (23) STR 433], held that 2. The issue before the Tribunal was whether the petitioner was liable to pay Service Tax on the value of SIM cards sold to the subscribers or not. The Tribunal noted that the issue had been settled by the decision of the Supreme Court in the petitioner s case reported in 2011 (23) STR 433 (SC) and, therefore, held that the petitioner was liable to pay Service Tax. The Tribunal, however, held that the extended period of limitation is not invocable for the reason stated therein and consequently the demand for the extended period of limitation was set aside and the penalties were also set aside. The appeal was disposed of in the following terms:- As the respondent has not collected any service tax from the sim card subscribers, in that circumstance, the value of sim cards sold to the subscribers shall be deemed to be cumtax price. In that situation, the matter needs examination for re-quantification of the taxable services provided by the respondent. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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