TaxTMI 
TaxTMI 
2025 (11) TMI 1701
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....on no AAHCS1922MST001 and derives income by way of rendition of service under the category of Maintenance or Repair Service prescribed under the relevant provisions of the Finance Act, 1994 2.1. The Service tax Audit conducted by the Audit Officers in respect of F.Y. 2012-13 to FY 2016-17, made the following observations: (i) that the appellant had received consideration in form of electricity charges with an added element of transmission and distribution loss at a specified percentage, (ii) that the appellant had not recorded the value received as advances and deposits, (iii) that the appellant had short paid the service tax under reverse charge mechanism on legal & professional services taken and (iv) that the appellant has availed inadmissible CENVAT Credit 2.2. On the basis of the observations raised by Audit, a Show Cause Cum Demand Notice bearing no. 02/Commr/Kol Audit-1/FMALL/Kol/18-19 dated 2708-2018 was issued to the appellant demanding total service tax of Rs 2,41,87,546/-, including cesses. 2.3. The said Notice was adjudicated by the Ld. Commissioner of C.G.S.T. and Central Excise, Kolkata South Commissionerate, wherein he has....
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.... whatsoever; the appellant is purely engaged in providing maintenance service and hence the observation of the Ld. Commissioner is factually incorrect. 4.2. It has also been submitted by the appellant that they are providing maintenance service to various shop owners including food outlets and multiplex. The said mall is owned by Heilgers Constructions & Development Pvt. Ltd. and Forum Shopping Mall Pvt. Ltd. and separate tenancy agreements have been entered into in this regard. The appellant is only responsible for providing maintenance service in respect of the shops, food court, Inox, etc. located in mall for which they are recovering maintenance expenditure towards electricity, air conditioning, gas, etc., in pursuance of separate agreement for maintenance service with each of the tenants; the service of maintenance was provided by the appellant in terms of agreement and recovery of expenditure towards electricity, air conditioning, gas etc. was made in pursuance of these agreements on actual cost incurred basis; simply because the recovery of transmission and distribution loss was made on a particular basis, one cannot assume that the appellant is not a pure agent. 4.3. ....
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....the impugned order, the appellant submits that from the annexure C/1 to C/5 it can be seen all the input services are for providing the output services and there is no dispute regarding receipt of the input services and use of input services, hence, rejection of CENVAT Credit is not sustainable. 7. (v) Non Payment of service tax amounting to Rs. 5,56,472/- (including all cesses) on Advance received from customers: 7.1. On this issue, the submission made by the appellant is that the amounts received by them form their clients are in the nature of refundable deposits, which are in the form of Loans. The appellant also submits that they have taken refundable loan from Multiplex Equipment& Services Pvt. Ltd. And M/s. Vidyut Electronics and Electricals Ltd. In support of this claim, the appellant submitted the copy of the loan agreement, Bank Statement and ledger account evidencing receipt of the loan and re-payment of the loan. Moreover, it is pointed out that this issue is squarely covered by Final Order dated 28.10.2025 of this Tribunal in appellants group companies case being No.75611 of 2017, wherein the appellant is Forum Projects Pvt. Ltd; hence, no service tax is payable b....
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.... of electricity charges collection is lower than the amount paid to the electricity company. 10.2. We also find that the said issue is covered by the Final Order Nos. 77044-77045 of 2024 dated 23.09.2024 of this Tribunal in appellant's own case being Service Tax Appeal Nos.71210 and 70663 of 2013. 10.3. Accordingly, by following the ratio of the Final Order dated 23.09.2024 passed by this Tribunal in appellant's own case in Service Appeal No.71210 of 2013 & anr., we hold that the demand of Service Tax amounting to Rs.2,32,48,096/-, confirmed in the impugned order, is not sustainable and hence, we set aside the same. 11. Regarding non-payment of Service Tax amounting to Rs.7,010/- (including all cesses) on legal service under Reverse Charge Mechanism (RCM), we find that the appellant have admitted this liability and discharged service tax of Rs. 8,901- (even though the demand is only Rs 7,010/- (including all cesses), along with the interest of Rs. 13,361/-, which was communicated vide their reply dated 06.07.2018. Thus, it is observed that the appellant are not contesting this issue. Accordingly, we uphold the demand of Service Tax, along with interest, as confirmed in the....
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....equently. We find that the department has raised and confirmed the demand merely on the basis of the nomenclature used for recording the receipts in the Balance Sheet. In reality, all these receipts are in the form of refundable Loans. Hence, we observe that no service tax is payable by them on the said advances received. 13.1. We find that the issue of service tax liability of refundable loans is squarely covered by Final Order dated 28.10.2025 of this Tribunal in appellants group companies case being Service Tax Appeal No.75611 of 2017, wherein the appellant is Forum Projects Pvt. Ltd. Thus, we hold that the demand of Rs.5,56,472/- confirmed in the impugned order is not sustainable and hence we set aside the same. 14. We further find that the appellant has contested the penalty imposed on them vide the impugned order. On this score, we note that the demands confirmed in the impugned order have not sustained, except to the extent of the demands admitted and paid by the appellant, as discussed in paragraphs 11 and 12 of this Order (supra). The amounts admitted by the appellant were paid by them along with interest before issue of the Notice. Thus, we find that there was no ne....