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TMI Blog2024 (12) TMI 675X X X X Extracts X X X X X X X X Extracts X X X X ..... e Agent Service', 'Repair & Maintenance Services', 'Construction services other than residential complex, including commercial/industrial buildings or civil structures', "Transport of Goods by Road', Works Contract Service', 'Legal Consultancy Service' and 'other taxable services'. During the period of dispute, the appellant was engaged in development of various projects and sold the plots and shops therein. The appellant followed the practice of receiving advances against the sale of plots and shops in the projects which were developed. The appellant also took loans to meet the financial requirements to buy land during the period in dispute. The appellant received advances from parties to meet financial needs of the business. An enquiry was initiated by the Anti-Evasion wing of Service tax Commissionerate, Delhi vide letter dated 21 August 2014 on the basis of information that the Appellant was rendering taxable services and had got registered themselves in the year 2013 and have not paid any service tax prior to 19.09.2013. On completion of investigations, show cause notice dated 13.12.2016 was issued to the appellant proposing recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) TMI 406 CESTAT NEW DELHI] * M/s RK Singh & Co. v. Commissioner Customs & Central Excise Bilaspur, Raipur [2023 (5) TMI 721 - CESTAT NEW DELHI] 3.1 Learned Chartered Accountant further submitted that for the period under dispute FY 2011-12 & 2012-13 whereiin it is mandatory to give appropriate classification in Show Cause Notice. However, on the contrary, multiple and vague classifications has been given in Show cause notice without clarity as to which revenue/advances/receipts are classified under which category of taxable service. Moreover, even vide the impugned order, no classification has been given by Adjudicating Authority while confirming demand for the period prior to 01 July 2012. It has been alleged in the Show cause notice that services of the appellant are covered under "Construction services other than Residential Complex, including commercial/industrial buildings or civil structures and/or 'Works Contract Services' while definition of both the category of services is given in the show cause notice respectively. Thus, even after conducting visit on the premises of the appellant under Rule 5A of Service Tax Rules, 2004, the Department has failed to bif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said land had to be identified by the Appellant. It is not the case that said land was readily available and was to be purchased only but the Appellant was entrusted with the responsibility to find and buy land as per the requirements/in prior consultation with AGIL. Similarly, Adjudicating Authority's contention that the period upto which this MoU is valid is not mentioned anywhere is unsustainable. In support of his contentions, Ld. CA has relied upon the following decisions:- * Commissioner of Central Excise, Chennai vs. MEL Systems & Services Limited [2008 (232) ELT 69 (Tri.-Chennai)] * Collector of Central Excise, Ahmedabad vs. Vikshara Trading and Invest. P. Limited [2003(157) ELT 4 (S.C.)] 3.3 Ld. CA further submitted that the Adjudicating Authority has wrongly interpreted the clause 6.7 of Sale Deed which provides that Service tax/Sales tax or any other taxes imposed/levied by the Government shall be borne and paid by the buyer as the purpose of said clause was merely to seek Service tax/sales tax over & above the sale consideration, in case the levy of the same is attracted. Presence of such a clause in any agreement does not necessitate that Service tax levy is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation. In support of his submission, he relied upon the following decisions:- * M/s International Air Charter v. Commissioner of Central Tax (Appeals - II), Delhi [2023 (12) TMI 1004-CESTAT NEW DELHI] * M/s GD Goenka Private Limited v. Commissioner of Central Goods and Services Tax, Delhi South [2023 (8) TMI 995-CESTAT NEW DELHI] * Bharat Hotels Limited v. Commissioner, Central Excise (Adjudication) [2018 (2) TMI 23-DELHI HIGH COURT] * Mahanagar Telephone Nigam ltd. v. Union of India and Ors. [2023 (4) TMI 216-DELHI HIGH COURT] Learned Chartered Accountant contended stating that cum-duty benefit under Section 67(2) of the Act must be granted to the appellant, if any, demand is upheld. 4. Learned Authorized Representative for the Department submitted that the appellant had received advances from M/s Aerens Goldsouk International Ltd. (AGIL) to acquire land in the rural agricultural areas. They also submitted copy of Memorandum of understanding (MOU) entered into with AGIL, wherein it was agreed that AGIL would provide interest free advances to the appellant to purchase such land. This MOU was not registered with the appropriate authority, in the absence of which the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that the Hon'ble Supreme Court, in the cases of M/s. Konkan Synthetic Fibres Vs. CC (Import) Mumbai [2012 (278) ELT 0037 (SC)] & M/s. Indian Oil Corporation Vs. Commissioner of Central Excise, Vadodara 2012-TIOL-04-SC-CX, [2012 (278) ELT 0037 (SC)] clearly states that the provisions of exemption have to be construed strictly and if the exemption is subject to certain conditions, the conditions have been complied with and that the substantial compliance is not enough. Thus, without any legal supportive documentary evidence, benefit of exemption cannot be given to appellant as was claimed by them on account of transaction made with AGIL and advances received for sale of plots, projects & properties etc. The appellant had intentionally not submitted all the documentary evidences in order to conceal the actual nature of the activities carried out by them. 4.3 Learned Authorized Representative further submitted that the extended period as provided in proviso to Section 73(1) of the Act ibid has rightly been invoked in this case and no portion of the demand is beyond a period of five years from the relevant date for show cause notice. 5. We have heard the Ld Chartered Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no revenue was shown by them in their balance sheet in lieu of such type of income. Thus, it was clear that, this MoU might be fabricated and hence was not a valid document in support of their contention." 6.1 In this context, we note that the salient features of a Memorandum of Understanding (MoU) typically include the following: * It should determine the intent of the two parties entering into an agreement. * Mention of specific date and time as to when it began and its end * A clear understanding between the parties regarding their duties and responsibilities * All information regarding payment and finance is indicated in clear terms * Dispute resolution and allocation of risks should be mentioned. * Clauses regarding termination of the said MoU 6.2 In the instant case, it has been observed in the impugned order that the MoU is not registered with any competent authority. However, it has been noted that the said MoU does not have any signature and date. This is required as both the parties have to understand and accept the duties & responsibilities cast on the First & Second party as per the clauses in each page of the MoU. The termination date has also not been me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement that this would have to be substantiated by documents. Consequently, we are of the opinion that this aspect of the case also requires to be remanded back to the original authority for verification. 8. As regards the other advances and rectification entries, the impugned order has stated that the appellant has not submitted any averments in this regard, and has concluded the same to exigible to service tax. This is not acceptable. Service tax can be charged only when the amount is received as consideration for service rendered by a service provider to a service recipient. Consequently, we are of the opinion that this issue also requires to be remanded to the adjudicating authority to examine relevant documents and consider the submissions of the appellant before passing the order. 9. As regards the issue of invocation of extended period, since we have held that the matter need to be remanded for re-consideration as discussed above, we do not deem it necessary to consider these submissions. 10. In view of the above discussions, we set aside the impugned order and remand the matter back to the original adjudicating authority for reconsidering the submissions made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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