M/s Swastik Township Pvt. Ltd. Versus CGST, Kolkata North
Service Tax
2018 (8) TMI 485 – CESTAT KOLKATA – TMI
CESTAT KOLKATA – AT
Dated:- 17-5-2018
S.T. Appeal No.75355/2018 – FO/76431/2018
Service Tax
SHRI P.K. CHOUDHARY, JUDICIAL MEMBER And SHRI BIJAY KUMAR, TECHNICAL MEMBER
Shri Saurabh Bhutra, Adv. for the Appellant (s)
Shri S. S. Chattopadhyay, Supdt. (A.R.) for the Revenue
ORDER
Per Shri Bijay Kumar :
The present appeal has been filed the Appellant against the impugned Order-in-Appeal No.219/ST-I/KOL/2017 dt.-26.09.2017 passed by Commissioner of CGST & Ex. (Appeals), Kolkata, vide which the ld.Commissioner (Appeals) has modified the order passed by the adjudicating authority to the extent that he set aside the demand of Rs. 46,814/- under Rule 14 and penalty under Rule 15 of Cenvat Credit Rules, 2004. He has also ordered the appellant to pay interest for intervening period under Section 75 of the Act and imposed penalty of Rs. 10,000/- under Section 77
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t under Rule 14 of the Cenvat Credit Rules and for such wrong availment of Cenvat Credit, the appellants were made liable to penal action under Rule 15 thereof. It is alleged that the aforesaid liability arose on the appellant on account of not including the additional sale price of the flat sold by the appellant pertaining to (i) Association formation deposit, (ii) Common meter security deposit, (iii) Deposit for common maintenance for six months, (iv) Deposit for electricity charges for common areas of six months. The appellant-assessee discharged the service tax liability on the total sale price, but did not discharge the service tax liability on the amount received on account of different head as mentioned above. It was felt by the Department that the services provided under the aforesaid head is to be categorized under “Builders Special Service” and such deposit is to be added in the gross amount in the service tax. The Department relied upon the audited balance sheet.
3. The ld.
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zu) of the Act. He is of the view that the Revenue has proceeded against the baseless allegations because the amount collected by them from the residence of the flat owners, has been taken towards the services mentioned above and has been subsequently returned to them after making adjustment towards various fees. The ld.Advocate also submitted that the impugned order classifying the services under Reverse Charge Mechanism (RCM) under Manpower Recruitment Services is not sustainable on the ground that the appellant has availed various services from vendors as plumbing services, pipe laying and fittings, tap box fitting etc. and the payment has been late against the plumbing bill. In providing of services discharging service tax on this service, the appellant is not in receipt of manpower recruitment services. The ld.Advocate also stated that the impugned demand is barred by limitation as the extended period of limitation is not invokable in this case. As there is no malafide intention,
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lt of any conscious and deliberate wrong doing and in the order passed under Section 11A(2) there is a legally tenable finding to that effect then the provision of Section 11AC would also get attracted. The converse of this, equally true, is that in the absence of such an allegation in the notice the period for which the escaped duty may be reclaimed would be confined to one year and in the absence of such a finding in the order passed under Section 11A(2) there would be no application of the penalty provision in Section 11AC of the Act.”
He has also relied upon the decision of the Tribunal in the case of Saboo Coating Ltd. Vs. CCEx, Chandigarh : 2016 (36) STR 447 (Tri.- Del.), wherein the Tribunal has held as under :
“4. As regards limitation, I find that there is no dispute by the lower authorities that the credit was availed and duly reflected in the returns. If there is no column in the returns to show the nature of the input services, the assessee cannot be blamed for not provi
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classify under the Builders Special Services classifiable under Chapter Heading 65(105)(zzzu) of the Finance Act,1994. On going through the various documents enclosed in the appeal memorandum, as such, agreement of sale, bank statement, bills provided by the various vendors, we find that the appellant has returned excess amount to the flat owners after collection of various fees, as such, Association formation deposit, Common meter deposit, common maintenance deposit, common electricity charges etc. The same has been rendered after collection of actual amount spent for payment of this deposit/fees/base area on behalf of 120 flat owners.
7. In view of the above, we are of the view that this payments are only actual charges paid to the various statutory bodies and for electricity maintenance in common area and the same is therefore, not liable to service tax and if so, abatement is available to them under the Service Tax Law.
8. Further, we find that the adjudicating authority has pass
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