2019 (2) TMI 1569

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....ances for sale of property on which Service Tax was paid by them. In cases where they received unsecured loans, they did not pay the Service Tax. On occasions certain advances though received, the potential customers later on cancel their booking and hence, such amounts were returned to them / transferred to other creditors Account for returning in future. The Appellant did not pay Service Tax on such transactions. The Appellant Company was issued SCN on various grounds, demanding Service Tax as well as denial of Credit. 2. Heard Shri Saurabh Dixit, Ld. Counsel for the appellant and Shri. T.G. Rathod, Ld. Joint Commissioner (AR) for the Revenue and carefully considered the submissions made by both the sides. 3. We find that as regards the....

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....is service charge or advance relating thereto and not merely loans and advances. However, in the interest of justice, we would like to remand the matter back to the original authority, to re-examine this issue and then determine actual taxable component on such transaction, after taking into consideration amounts already returned to customers as well as Service Tax already paid, though belatedly, by the Appellant. The Appellant is directed to share necessary evidences and/or details with the Original authority for this purpose. Needless to mention, amounts which are actually reflected as loans would not be subjected to the levy of Service Tax. We also find merit in the contention of the Appellant that the Service Tax paid through Cenvat Cre....

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....f decisions by the Appellant in support of the contention that in absence of any independent corroborative evidence, mere loose entries done in computer for practice of accounts of statement that too when retracted, cannot form sole basis for demanding the tax. The CESTAT in the case of Gupta Synthetics Ltd. 2014 (312) E.L.T. 225 (Tri. - Ahmd.) has held that demand cannot be based on mere private records, without any other substantial corroborative proof. That similar view was taken in the case of M/s Bhor Rubber Factory 2006 (198) E.L.T. 549 (Tri. - Mumbai) the demand on this count therefore cannot be sustained. As regards the demand of Service Tax of Rs. 12,71,428/-, on the presumption that the Appellant had collected but not paid Service....

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...." which is legally not correct. For the period after 01.07.2012, the Revenue Authorities have considered Service Tax with appropriate abatement (25% of value tax - 75% abated) by including the land value in the value of taxable service and then granted abatement. Whereas the Appellant chose to exclude land value and on the balance works contract value service tax paid at appropriate abated rate (40%) under Rule 2A of Service Tax valuation rules. That the Rule 2A of the Service Tax Valuation Rules, 2006 was not clear and properly drafted insofar as the aspect of including value of the land therein is concerned. That the Hon'ble Delhi High Court had in fact held that demand itself cannot survive in such circumstances, in the case of M/s Sures....