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2015 (1) TMI 686 - AT - Service TaxWaiver of pre dpeosit - construction of a residential apartment complex - Held that - Even though learned AR argued and relied upon the decision in the case of LCS City Makers Pvt. Ltd. Vs. CST, Chennai - 2012 (6) TMI 363 - CESTAT, CHENNAI , we find that the decision in the case of Krishna Homes Vs. CCE, Bhopal 2014 (3) TMI 694 - CESTAT AHMEDABAD , Maharashtra Chamber of Housing Industry Vs. UOI 2012 (1) TMI 98 - BOMBAY HIGH COURT are more proper and we have already relied upon previous final orders where this Tribunal was considering the refund claims of the buyers of flats and allowed the same. Further in the case of G.S. Promoters Vs. UOI 2010 (12) TMI 34 - PUNJAB AND HARYANA HIGH COURT , Hon ble High Court of Punjab & Haryana took the view that the amendment made on 01.07.2010 cannot be given retrospective effect. Prima facie we find that the appellant has made out a case on merits for complete waiver of pre-deposit. Accordingly the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.
Issues:
1. Condonation of delay in filing the appeal. 2. Liability for service tax on construction of residential flats. 3. Applicability of service tax demand post construction completion. 4. Comparison of legal precedents in similar cases. 5. Waiver of pre-deposit requirement and stay against recovery. Condonation of Delay: The appellant sought condonation of a 19-day delay in filing the appeal, attributing it to miscommunication with chartered accountants. The delay arose as the appellant believed all appeals were being prepared, while only the order-in-original had been handed over. The Tribunal accepted the reason for delay and condoned it. Liability for Service Tax on Construction: The appellant, engaged in constructing residential flats, argued that since the construction was completed before 01.07.2010, any service tax demand post that date was improper. The appellant contended that they were only recovering balance dues from customers after completing the construction. They claimed that a show-cause notice issued on 13.02.2013 was time-barred. Applicability of Service Tax Demand Post Construction Completion: The Tribunal considered legal precedents, favoring decisions like Krishna Homes Vs. CCE, Bhopal and Maharashtra Chamber of Housing Industry Vs. UOI over the decision in LCS City Makers Pvt. Ltd. Vs. CST, Chennai. Referring to G.S. Promoters Vs. UOI, the Tribunal noted that the amendment made on 01.07.2010 could not have retrospective effect. Consequently, the Tribunal found merit in the appellant's case for complete waiver of pre-deposit and granted a stay against recovery during the appeal's pendency. Comparison of Legal Precedents: The Tribunal compared various legal precedents to determine the appropriate course of action. Notably, decisions in Krishna Homes and Maharashtra Chamber of Housing Industry were deemed more suitable than the decision in LCS City Makers Pvt. Ltd. The Tribunal also referenced the view taken in G.S. Promoters case regarding the retrospective effect of the amendment made on 01.07.2010. Waiver of Pre-deposit Requirement and Stay Against Recovery: Based on the appellant's case and the legal precedents cited, the Tribunal waived the requirement of pre-deposit and granted a stay against recovery during the pendency of the appeal. The operative portion of the order was pronounced in open court on 15.09.2014.
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