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TMI Blog2013 (10) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... are filed by the same individual - the assessee M/s Mendu Sambasiva Rao. ST Appeal No.882/2012 is against the appellate order dated 17.1.2012 passed by the Commissioner of Customs, Central Excise and Service Tax (Appeals-II), Hyderabad in order- in-appeal No.02/2012. This appeal was preferred by the assessee against the order-in- original No.16/2011-(ST) dated 26.8.2011, passed pursuant to the show cause notice dated 5.7.2010. By this order, service tax of Rs.7,59,383/- was confirmed apart from interest under Section 75 of the Act and penalty under Section 78. By an order dated 28.12.2011, the appellate authority, exercising discretion under Section 35F of the Central Excise Act, 1944 (in the stay application filed in the appeal by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; to have obtained physical possession of the properties, though without registration of these properties in his name; and that as and when a buyer is identified, would sell the properties to the purchasers; that the registration of the properties in favour of such buyers was however by the original owner of the properties. According to the assessee, the difference between the price he agreed to purchase properties for and the price for which it was conveyed to the buyers, comprised his profits. In his statement recorded on 8.12.2009, under Section 14 of the Central Excise Act, 1944, the assessee stated that the income disclosed by him to the Income Tax Authorities, for the periods 2005-06, 2006-07 and 2007-08, was the profit from the real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, leasing or renting of real estate and including a real estate consultant. The expression "Real Estate Consultant" is defined in Section 65 (89) of the Act. Since the assessee was found to have suppressed the fact of rendering the taxable service; and to have contravened the provisions of the Act with an intent to evade tax, the extended period was invoked under the proviso to Section 73(1) of the Act. 6. As apparent from the material on record in ST Appeal No.883/2012, the appellate authority had scheduled hearing of the stay petition on 28.12.2011, as requested by the assessee. On 28.12.2011, the stay application was disposed of ex-parte, granting waiver of pre-deposit only to the extent of the penalty component, on the condition of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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). 10. In the above circumstances and on the above analysis, we set aside the order of the Commissioner (Appeals) dated 17.1.2012 (dismissing the appeal of the appellant for failure of pre-deposit and violation of conditional order dated 28.12.2011), on condition that the appellant herein deposits the service tax liability and interest thereon, as assessed by the adjudicating authority within six weeks from today and furnishes proof of such remittance bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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