TaxTMI 
TaxTMI 
TaxTMI 
2024 (12) TMI 1639
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....sidering the same, show cause notice No. 347/2013 and show cause notice No. 348/2013 both dated 24.10.2013 were issued. After considering the issue in detail, Adjudicating Authority dropped the demand against show cause notice No. 347/2013 and as regards show cause notice No. 348/2013 dated 24.10.2013, Adjudication authority confirmed service tax of Rs. 5,09,850/- against non-payment of service tax on the deposit amount received from M/s. Goldman Sachs, confirmed demand of Rs. 3,21,18,738/- being the ineligible CENVAT credit in terms of Rule 14 of the CENVAT Credit Rules, 2004 and also confirmed demand of service tax of Rs. 2,68,42,572/- against non-payment of service tax on the construction services provided to landowners in terms of the proviso to Section 73(1)(2) of the Finance Act, 1994 along with interest and imposed penalties under the various provisions of the Finance Act, 1994. Aggrieved by the impugned order, present appeal is filed before the Tribunal. 3. When the appeal came up for hearing, the Ld. Counsel for the Appellant submits that the Appellant is a private limited company and involved in development of immovable property. During the disputed period, they have ent....
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....no service tax applicable since the amount is a provision for providing additional power of 600 KVA and it is exempted from payment of service tax, since the said service is relating to transmission and distribution of electricity by a person to any other person as per Notification No. 45/2010-ST dated 20.07.2010, the demand of service tax of Rs. 5,09,850/- is not tenable. 5. As regards demand of CENVAT credit on various inputs, the Ld. Counsel draws our attention to the findings of the Commissioner, Adjudication authority and submits that the demand of CENVAT credit is made only based on the Circular No. 98/1/2008 dated 04.01.2008 and the said Circular deals only with CENVAT credit on 'Commercial or Industrial Construction' services or 'Works Contract" services. However the Adjudication authority wrongly denied the credit on various other services by applying the above Circular, which is unsustainable. The Ld. Counsel also draws our attention to Rule 2(l) of CENVAT Credit Rules, which during the period prior to 01.04.2001 defined expression 'input services' both inclusively and exhaustively so as to encompass in Rule 2(l), any services used by a provider of taxable se....
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....s of the Tribunal in the matter of M/s Bairathi Developers Pvt., Ltd. Vs. CCE, -2016 (43) STR 455 (Tri. Del) and also Circular No. 332/35/2006-TRU dated 01.08.2006, Circular No. 108/2/2009-ST dated 29.01.2009 and Circular No. 151/2/2012 dated 10.02.2012. The Ld. Counsel further submits that the demand is also unsustainable by virtue of the Notification No. 36/2010-ST dated 28.06.2012 read with MF(DR) letter D.O F. No. 334/3/2010-TRU dated 01.07.2010. As per the above Notification and the Ministry's letter any service specified in clause A of Section 76 of the Finance Act, 2010 other than 'Commercial Training or Coaching Center' services, falling under Section 65(105)(zzc) or 'Renting of Immovable Property' Services, falling under Section 65(105)(zzzz), where consideration was received prior to 01.07.2010 is fully exempted from payment of service tax. However, Adjudication authority has not considered the above and confirmed the demand and it is therefore, unsustainable. 7. Further the Appellant being a builder/developer was brought under the service tax post 01.07.2010 vide amendment made by the Finance Act, 2010, where the Parliament had inserted explanation b....
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...., (prior to 01.04.2011) 'Input service' means any service. (1) Used by a provider of taxable service for providing an output service, or (ii) Used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products from the place of removal, and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and training, computer networking, credit rating, share registry, and security, inward transportation of inputs or Capital goods and outward transportation upto the place of removal." "6.1 From the above definition, it is clear that any service used by the service provider for providing an output service is admissible „input Service‟. Input service specifically includes amongst other services used in relation to setting up of premises o....
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....n' was specifically legislated upon to expand the concept of taxable service; that prior to the explanation, the view taken was that since a mere agreement to sell does not create any interest in the property and the title to the property continues to remain with the builder, no service was provided to the buyer; that the service, if any. would be in the nature of a service rendered by the builder to himself, that the explanation expands the scope of the taxable service, provided by builders to buyers pursuant to an intended sale of immovable property before, during or after the construction and therefore the provision is expansive of the existing intent and not clarificatory of the same; and is consequently prospective. 6. In the light of the judgement of Bombay High Court in Maharashtra Chamber of Housing Industry (supra) and in the light of the admitted factual situation that constructions on behalf of the assessee were during the period prior to 1-7-2010 when the explanation was not yet appended to Section 65(106) (zzzh) of the Act, there is no liability on the assessee to remit tax under the then extant legislative regime. On the aforesaid analysis the impugned order pas....