TaxTMI 
TaxTMI 
2024 (6) TMI 449
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....o discharge their service tax liability on receipts of taxable value during the year from 2007-08 to 2009-10, (b) failed to include the value of free supply material supplied by the service recipient and miscellaneous construction work bill in the value of the service during the year 2008-09 and 2009-10 which resulted in non-payment/short payment of service tax amounting to Rs. 61,80,751/ (Rupees sixty one lakh eighty thousand seven hundred and fifty one) only (inclusive of Cesses), (c) received advance payments from the service recipients but failed to discharge its service tax liability in proper manner that resulted in (d) non-payment/short payment of service tax amounting to Rs. 8,27,385/ (Rupees eight lakh twenty seven thousand three hundred and eighty five) only (inclusive of Cesses) and (e) non-payment/short payment of interest of Rs. 81,955/ (Rupees eighty one thousand nine hundred and fifty five) only. 2. The Notice was adjudicated by the Ld. Commissioner wherein the Ld. Commissioner confirmed the above demand of Service Tax, along with interest and penalty vide the impugned order. Aggrieved against the impugned order, the appellant h....
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....tial complex at Angul and Raigarh units. Initially, the appellant had been paying Service Tax for the services rendered by them. Later, JSPL obtained a legal opinion from the Ld. Advocate Shri V. Lakshmi Kumaran who opined that no Service Tax is liable to be paid for the said services as the residential complex constructed by JSPL was meant for the personal use of it's employees. The appellant vide their letter dated 16.04.2009 intimated the Department that they are not paying Service Tax on the services rendered to JSPL as their contractee has categorically informed that they are not going to reimburse any Service Tax in view of the expert opinion obtained by them. 6.1. Thus, the main contention of the appellant is that the extended period of limitation cannot be invoked to demand Service Tax in this case, as there is no suppression of facts with intention to evade payment of tax exists in this case. 7. We have perused the letter dated 16.04.2009 written by the appellant to the Commissioner, Service Tax Commissionerate, Kolkata. For ready reference, the same is reproduced below: - 7.1. From the above, it is evident that the appellant has categorically informed the Departm....
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....tion. - For the removal of doubts, it is hereby declared that for the purposes of this clause, - (a) "personal use" includes permitting the complex for use as residence by another person on rent or without consideration; (b) "residential unit" means a single house or a single apartment intended for use as a place of residence;" 8.1. From the above, we observe that the construction of complex, which is constructed by a person directly engaging any other contractor and intended for personal use as a residence, is not liable to Service Tax. In the present case, the residential complexes constructed by JSPL in their Angul and Raigarh units were meant for the use of their employees. We observe that the activity of works contract service undertaken by the appellant for JSPL falls within the ambit of the definition of "personal use" as mentioned supra. Accordingly, we hold that the service rendered by the appellant for JSPL is not liable to Service Tax under the category of works contract service. 9. Regarding the allegation of the Department that the appellant is liable to include the value of free supply materials in their assessable value for the purpose of paym....
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....r observations in the preceding paragraphs that the appellant is not liable to pay Service Tax for the services rendered, we hold that the demand of Service Tax on the advances received is not sustainable. 11. Since the demand itself is not sustainable, the question of demanding interest and penalty does not arise. 12. In view of the above, we hold that the demands confirmed in the impugned order are not sustainable. 13. Accordingly, we set aside the impugned order and allow the appeal filed by the appellant. (Operative part of the order was pronounced in open court) ============= Document 1 Annexure-"A" à« P/113 RASHA IND.PRIVATE LIMITED Regd. Office: 4, SYNAGOGUE STREET SIH FLOOR, ROOM NO. 603 KOLKATA 700 001 PHONE NO. 2242-1618 TAX NO. 033 2242-2367 Dated: 16.04.2009 To, -The Commissioner Service Tax Commisionarate Service Tax Division-1, Ranges2 180,Shanti Pally,Raja Danga Road Near Rubi Hospital, Kolkata-700 103 Dear Sir, Ref: Service Tax Reg No.AABCR49200ST001 "Sub; Request for Guidance We are registered under Service Tax for providing renting of immovable property services and works contract ser....