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2024 (6) TMI 449

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.... Cause Notice dated 07.06.2012 was issued by the Commissioner, Service Tax Commissionerate, Kolkata to the appellant demanding Service Tax of Rs. 70,08,136/- under Section 73 of the Finance Act, 1994 along with interest of Rs. 81,955/-. Penalty has also been proposed under Section 78 of the Act. In the Notice, it has been alleged that the appellant had: (a) failed to 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 R....

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....r engaged by them for construction of residential complex since the complex had been constructed for their own employees and it qualifies as "personal use" which is exempted from the purview of Service Tax. Accordingly, the appellant also did not pay Service Tax for the works contract service rendered by them to JSPL. The appellant also 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 JSPL has categorically informed them that they are not going to reimburse any Service Tax in view of the expert opinion obtained by them. The appellant submits that they have not suppressed any information from the Department as they have informed the non-payme....

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....ormed 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 Department that according to them, the service rendered by them is not liable to Service Tax and hence, they are not paying Service....

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....x" means any complex comprising of - (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person." ----------------------------------------------------- "Explanation. - For the removal of do....

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....f "gross amount charged" given in Explanation (c) to Section 67 only provides for the modes of the payment or book adjustments by which the consideration can be discharged by the service recipient to the service provider. It does not expand the meaning of the term "gross amount charged" to enable the Department to ignore the contract value or the amount actually charged by the service provider to the service recipient for the service rendered. The fact that it is an inclusive definition and may not be exhaustive also does not lead to the conclusion that the contract value can be ignored and the value of free supply goods can be added over and above the contract value to arrive at the value of taxable services. The value of taxable services ....