2018 (11) TMI 1388

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....der section 75 was also demanded and penalty of an equal amount of Service Tax demand was imposed under section 78 of the Finance Act, 1994. Being aggrieved by the order in original, the appellant filed present appeal. 2. Sh. Bharat Raichandani, Ld. Counsel appearing on behalf of the appellant submits that the electricity charge reimbursed by the Service recipient is not part and partial of gross value of service of renting of immovable property. The electricity charges, as per the terms of lease agreement, suppose to be borne by the tenants, therefore, merely payment of electricity charges and reimbursement of the same cannot be consideration towards the service. He submits that the issue is squarely covered by various following decision:- * ICC Realty (India) Pvt. Ltd Vs CCE., Pune- 2013 (32) S.T.R 427 (Tri-Mumbai) * M/s. Hotel Lake View Ashok Vs. CGST CE and CC, Bhopal-2018- TIOL-2891-CESTAT-DEL * M/s. S B Developers Ltd Vs CST., New Delhi-2018-TIOL-1866- CESTAT-DEL * Commissioner of GSt and Central Excise, Chennai Versus M/s Ticel Bio Park Ltd-2018-TIOL-2195-CESTAT-MAD 3. Ms. Nitina Nagori, Ld. Deputy Commissioner (AR) appearing on behalf of the Revenue reiterates the....

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....-11-2011 relied upon by the appellants dropped the proceedings which were initiated on the same ground in the case of M/s. Panchshil Tech Park Ltd. The Commissioner of Central Excise in the adjudication order held that electricity is goods and chargeable to Nil excise duty. The decision of the adjudicating authority is accepted by the Revenue as per the communication dated 26-9-2012 by the Commissioner of Central Excise, Pune-III. The present appellants are also under the jurisdiction of Pune-III Commissionerate. 10. In view of the above discussion, we find merit in the contention of the appellants that the electricity charges collected from the tenants cannot be formed part of the assessable value for the purpose of Service Tax as provider of renting of immovable properties. 11. Impugned orders are set aside and the appeals are allowed. * M/s. Hotel Lake View Ashok Vs. CGST CE and CC, Bhopal-2018- TIOL-2891-CESTAT-DEL 5. We have heard both the sides and have also perused the record of the appeal. It is a matter of record that appellants have been charging 20% of sales proceeds from 'Shan-e-Bhopal Restaurant' as a commission for providing support service to business in the for....

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....d by them towards electricity and water, are not to be included in the taxable value for charging service tax. 7. In view of the above, we do not find any merit in the order passed by Commissioner (Appeals) and accordingly, we set aside the same. The appeal is allowed. * M/s. S B Developers Ltd Vs CST., New Delhi-2018-TIOL-1866- CESTAT-DEL 4. The demand raised and confirmed by the Revenue is on various grounds which are discussed below"- 4. (i) The appellant received electricity from the Grid and in addition also had the capacity to generate electricity using generators. They supplied electricity from both sources to the tenants of the Mall and the payment therefore was collected by the appellant. But only in respect of the electricity received from the Grid, the charges are paid to the Grid. The Department was of the view that the charges recovered for the electricity generated by the appellant using generators and supplied to the tenants, are to be included in the maintenance charges recovered from the tenants by the appellant and such amounts will be liable to payment of service tax. (ii). Ld. Advocate for the appellant submitted that the appellant was collecting electrici....

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....pply undertaking by the appellant is much more than the total amount of electricity charges recovered from the tenants. From the figures, we are unable to come to the conclusion regarding the amount of electricity generated by the appellant and supplied to the tenants by using thereon generating sets. The payment for which is includible in the maintenance charges. In this connection, we direct the adjudicating authority to allow the claim of the appellant with respect to reimbursement of electricity charges from tenants in respect of electricity received from the Grid. At the same time the appellant is directed to submit before the adjudicating authority the details of electricity generated by them and supplied to the tenant and the charges recovered therefor. This will be includible in the consideration of maintenance charges and liable to service tax. * Commissioner of GSt and Central Excise, Chennai Versus M/s Ticel Bio Park Ltd-2018-TIOL-2195-CESTAT-MAD 5. The Revenue is aggrieved by the order passed by the Commissioner (Appeals) who set aside the entire demand. The demand in respect of electricity charges and air conditioning charges being reimbursable expenses, we are of t....