TaxTMI 
TaxTMI 
2015 (2) TMI 274
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....tantial questions of law: "1. Whether pre-deposit can be ordered under Section 35 of the Central Excise Act, 1944 by bypassing the provisions of Section 67(1)(i), Section 67(1)(ii) and Rule 2A(i)(b) of the Service Tax (Determination of value) Rules, 2006, which is also the method prescribed by the Hon'ble Supreme Court? 2. Whether pre-deposit can be ordered under Section 35 of the Central Excise Act, 1944 by relying on a rule, which the Government itself has accepted that it is an inadvertant rule, which is against the statutory provisions and subsequently amended the said rule? 2. The brief facts of the case are ....
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....ant further submitted that they had paid the service tax in respect of the flats sold to third parties and they had not suppressed the land owner's share. Hence, they requested to drop the proceedings. 4. After analysing the reply filed by the appellant and after affording personal hearing to the appellant, the Adjudicating Authority adjudicated the case and came to hold that that the classification of the service provided by them was not in dispute. In so holding the Adjudicating Authority further held as follows: "I observe that it is the 'SPP'who provided the service of construction of flats by virtue of entering into a 'JVA'. A....
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....d made in the show cause notice, which reads as follows: "i) The extended period has been rightly invoked for demand on the subject service tax under the proviso to Section 73(1) of the Finance Act 1994; ii) I confirm the demand for payment of an amount of Rs. 27,19,581/- (Rupees twenty seven lakhs nineteen thousand five hundred and eight one only) (Service Tax: Rs. 26,40,370/- + Edu. Cess; Rs. 52,807/- + SHE Cess: Rs. 26,404/-) from M/s.Southern Properties & Promoters, Coimbatore - 28 under Section 73(2) of the Finance Act 1994 read with the proviso to Sections 73(1) ibid; &n....
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....unal is extracted hereunder: "3. On the other hand, the Ld. AR on behalf of the Revenue reiterates the findings of the Commissioner (Appeals). He drew the attention of the Bench to Rule 3 of the Service Tax (Determination of value) Rules, 2006. He submits that the value of such taxable service shall be equivalent to the gross amount charged by the applicant to provide construction of the similar 48 flats. He relied upon the decision of the Tribunal in the case of Prince Foundation Ltd. Vs. CST, Chennai - 2014 (33) STR 448 (Tri.-Chen.), where stay was granted partially." 10. After hearing both sides, the Tribunal on a consideration of Rule 3 of t....
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....t falls under Section 65(105)(zzzh) of Finance Act, which was not disputed by the appellant before the Adjudicating Authority. Section 65(105)(zzzza) of the Finance Act relates to works contract. He further submitted that though the residential units constructed by the appellant were shared between the land owner and the appellant, the payment of service tax is vested with the appellant only, since the appellant had rendered the service as service provider or developer of the project. Hence, the services rendered by the appellant fall under the category of "Construction of Residential Complex Service", defined under Section 65(105)(zzzh) of the Finance Act, 1994. 14. Heard learned counsel appearing for the appellant and learned standing ....
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.... It is not in dispute that the appellant is engaged in the promotion and construction of residential complexes and not engaged in works contract. It is relevant to note that the plea now taken by the learned counsel appearing for the appellant that the appellant is entitled to the benefit of Notification No.29 of 2007 dated 22nd May, 2007 has not been taken by the appellant either before the Adjudicating Authority or before the Commissioner (Appeals). 19. Prima facie, we are not inclined to entertain this appeal, in view of the specific admission by the appellant before the Adjudicating Authority that the services rendered by the appellant would fall under Section 65(105)(zzzh) of the Finance Act, 1994. Notification No.29 of 2007 dated 2....