2013 (10) TMI 1211 - AT - Service Tax

Demand - Section 65(88) - Real Estate Agent service - suppression of facts - ex-parte order of Commissioner (Appeals) - On behalf of the appellant, it is contended that he did not receive notice of hearing - Held that - it is clear that the consultants of the appellant were aware that the hearing of the stay application could be scheduled to 28.12.2011, as requested by them. The appellant however asserts that no fresh notice of rescheduled hearing on 28.12.2011 was received prior to that date - prima facie no infirmity either in the order of the Commissioner (Appeals) dated 28.12.2011 (directing pre-deposit of tax and interest) as a condition for waiver of pre-deposit of the penalty, nor with the order dated 17.1.2012 dismissing the appeal for failure of pre-deposit, we are inclined to consider the plea of the appellant for another opportunity to permit him to pursue the appeal against the adjudication order dated 26.8.2011 on merits, before the Commissioner (Appeals) - matter remanded back subject to deposit of entire demand of service tax with interest.

Summary

Issues:
1. Stay applications for disposal of substantive appeals.
2. Appeal against order confirming service tax, interest, and penalty.
3. Appeal against imposition of penalty under Section 77 of the Finance Act 1994.
4. Classification of the assessee's transactions as "Real Estate Agent" service.
5. Dismissal of appeal due to failure of pre-deposit.
6. Allegation of lack of notice for rescheduled hearing.

Analysis:
1. The judgment dealt with the disposal of substantive appeals at the stage of stay applications, with both parties agreeing to proceed to the merits of the appeals without further delay.

2. ST Appeal No.882/2012 was filed by the assessee against the order confirming service tax, interest, and penalty. The appellate authority had ordered pre-deposit of the assessed service tax and interest, granting waiver of the penalty component. The appeal was against the order-in-original dated 26.8.2011.

3. ST Appeal No.883/2012 was filed by the assessee against the Commissioner's order allowing Revenue's appeal and imposing penalty under Section 77 of the Finance Act 1994. Revenue contended that the assessee contravened various provisions of the Act, leading to the imposition of the penalty.

4. The assessee was engaged in real estate business, claiming to purchase plots under agreements of sale, make profits on subsequent sales, and not maintaining proper records of transactions. The adjudicating authority classified the transactions as "Real Estate Agent" service due to the absence of registered sale deeds in the assessee's favor.

5. The appeal in ST Appeal No.883/2012 was dismissed for failure of pre-deposit as ordered earlier. The appellant contended lack of notice for the rescheduled hearing, although consultants were aware of the possible rescheduling.

6. The judgment set aside the dismissal order, granting the appellant another opportunity to pursue the appeal on merits. The appellant was directed to deposit the service tax liability and interest within six weeks and furnish proof of payment. Failure to comply would result in dismissal of the appeals.

This detailed analysis covers the various issues addressed in the judgment, including the classification of services, imposition of penalties, failure of pre-deposit, and the appellant's plea for reconsideration based on alleged lack of notice.