2018 (2) TMI 1318

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....a for execution of land acquisition work and also entered into a contract/work order for leveling of soil including of gorges/Nallah, removing of shrubs, grass and ruble at Sahara City Homes, Bahraich, with M/s Sahara India Commercial Corporation Ltd., Lucknow (hereinafter referred to as SICCL ). The enquiry was initiated by the officers of DGCEI and recorded various statements of the officials of M/s Sahara India and M/s SICCL. From the analysis of above MOU, the agreement dated 03/11/2003 and various statements recorded in this regard, it transpired that M/s Sahara India Commercial Corporation Ltd., was taken to set up a residential township in or around Bahraich on around 100 to 150 Acres of land. As being outside, they were unable to pr....

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.... the appellants were served the show cause notice dated 20/04/2010 proposing to demand of service tax of Rs. 42,32,670/- (including Ed. Cess and S & H Ed. Cess) u/sec 73(1) of Finance Act, 1994 along with interest u/s 75 ibid and penalties under different Sections of the Act. After providing an opportunity of personal hearing, the Adjudicating Authority confirmed the demand of Rs. 42,32,670/- alongwith interest and imposed penalty of Rs. 42,32,670/- each u/sec 76 & 78 of the Finance Act, 1994, Rs. 5,000/- each under Section 77(b) & (c) ibid and also imposed penalty under Section 77(a) of the Act, which has not been quantified. Aggrieved by the said order the respondents filed an appeal before Commissioner (Appeals). The Appellate Authority ....

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....0/- + 1,72,02,000/- + Rs. 1,38,00,000/- (D.D.)] in land purchasing at Baharaich, which includes stamp duty. They also produced a certificate issued by chartered accountant for expenditure of such amount. Thus there is no dispute that entire amount was spent in land purchasing and registry charges, while they received only Rs. 4,96,14,500/- from M/s SICCL [Rs.1,38,00,000/-(By DD) (+) 3,58,14,500/- (by cheques)]. 4.3 I observe that as per Entry 49 of the State List II of the Constitution of India (Article 246) only the State has exclusive power to impose taxes on the LAND. Accordingly the stamp duty was levied on the cost of the land by virtue of Stamp Duty Act enacted by the State. Thus the levy of service tax on the cost of the land is ul....

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....ue, i.e. taxability on leveling of soil including of gorges/nallah, removing of shrubs, grass and ruble etc. at Sahara City Homes, Baharaich as per agreement/work order dated 03/11/2003, we find that as per condition at SI. No.2 of the said agreement, the completion period was two months from the date of receipt of order. We observe that Site formation and excavation and earth moving and demolition service comes under the net of service tax [Section 65 (105) (zzza) of Finance Act, 1994] only w.e.f. 16/06/2005 by the Finance Act, 2005. Thus question of imposition of service tax prior to 16/06/2005 does not arise when the agreement/work order dated 03/11/2003 expired (become infructuous) after the period of two months from the date of receipt....