2015 (8) TMI 1244 - AT - Service Tax

Collection of amount in the name of service tax - Amount received from several purchasers of flats - Held that - the original authority also observed that in many cases the works used was service charges and not service tax; moreover original authority also had examined all the documents and came to the conclusion that the appellants had not charged service tax and collected the same; moreover he also took note of the fact that appellants had obtained indemnity letters from the purchasers of the flats undertaking to reimburse the service tax to them in case it comes possible; during the relevant period, there was no clarity regarding law of service tax and it is the submissions of the learned counsel that appellants had taken such indemnity letters. On the basis of the above facts, the original authority dropped the demand The only ground taken is that the association of the flat owners had forwarded several copies of price list wherein the service tax element had been shown. Unlike original authority there is no detailed discussion at all in the order of the Commissioner (Appeals) except for the observation that in the price list service tax has been shown. - The original adjudicating authority had reached the correct conclusion in the facts and circumstances of the case. - Demand set aside - Decided in favour of assessee.

Summary

Issues:
1. Waiver of pre-deposit requirement for appeal
2. Collection of service tax by the appellant
3. Analysis of evidence and documents
4. Discrepancies in the Commissioner (Appeals) order
5. Decision on the appeal and consequential relief

Waiver of Pre-Deposit Requirement:
The judgment states that although only a stay application was listed, the appeal itself can be decided finally after hearing both sides. Consequently, the pre-deposit requirement is waived, and the appeal is taken up for a final decision.

Collection of Service Tax:
The Revenue contended that the appellant had collected service tax from flat purchasers, amounting to over &8377;5.8 lakhs, beyond the normal period. The investigation was initiated based on a complaint from a flat purchaser alleging the collection of service tax. However, the appellant argued, supported by evidence, that they did not show service tax as a cost element in their receipts or bills. The original authority concluded that there was no correlation between the service tax amount and flat cost, no specific percentage was charged as service tax, and the appellants had not collected service tax. The appellants had also obtained indemnity letters from flat purchasers. The Commissioner (Appeals) upheld the demand solely based on the presence of service tax in price lists, lacking detailed discussion unlike the original authority.

Analysis of Evidence and Documents:
The judgment scrutinized the basis for the original authority's conclusion and relevant documents. It found the impugned order unsustainable, supporting the original authority's correct conclusion. The original authority's decision was deemed appropriate in the circumstances, leading to setting aside the impugned order and allowing the appeal with any consequential relief for the appellant.

Discrepancies in Commissioner (Appeals) Order:
The judgment highlighted the lack of detailed discussion in the Commissioner (Appeals) order, which merely noted the presence of service tax in price lists without a thorough analysis. This discrepancy, compared to the original authority's detailed examination of evidence, contributed to the unsustainability of the Commissioner (Appeals) order.

Decision on the Appeal and Consequential Relief:
Ultimately, the judgment concluded by setting aside the impugned order and allowing the appeal in favor of the appellant. Any consequential relief was granted accordingly, aligning with the original authority's findings and dismissing the Revenue's contentions regarding the collection of service tax by the appellant.