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TMI Blog2014 (4) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... premises with effect from 16.6.05 when the said flats / commercial space were given possession to the buyers, which started with effect from 10.9.04 and residential premises with effect from 16.6.05. When the said flats / commercial space were given possession to the buyers, which started with effect from 1.4.07, the appellant also collected service tax from their buyers by representing the same as 'reimbursement of Service Tax'. 2. Inasmuch as the appellant were not themselves providing the construction services and as such, were not registered with the service tax department, they themselves did not deposit the service tax so collected by them from their customers. The officers of Anti-evasion, Directorate of Service Tax Commissionerate, Delhi initiated inquiries against them and during the course of investigation, recorded the statement of various representative if the appellant. Statement of Shri A Rustogi, GM Finance was recorded on 28.1.08, wherein he admitted that they are recovering amounts in the name of 'reimbursement of Service Tax' from their customers at the time of handing over of possession; that they were charging /collecting the service tax on per square ft. area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the construction of flats / commercial property. They submitted that the service tax deposited with the Revenue is to the tune of around 3.48 crores whereas they have collected approximately an amount of Rs.3.24 crores. As such, it was contended that they have not retained any part of service tax collected by them from the customers. They also placed on record certificates issued by their Chartered Accountant. The above submissions were not found favoured with by the Commissioner who rejected their submissions on the point of jurisdiction as also on merits. The adjudicating authorities observed that the appellant was required to prove that independent service tax amounts was collected by them, has not been paid by themselves to the Government and the deposit of the same through the contractor was not in accordance with the law. He accordingly, confirmed the service tax demand of Rs.3,24,81,023 (Rupees three crores twenty four lakhs eighty one thousands and twenty three only) along with confirmation of interest and imposition of identical amount of penalty in terms of section 78 of the Finance Act, 1994 and of Rs. 1,000/- (Rupees One thousand only) in terms of provisions of sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act, which are being reproduced below: (1) Any person who is liable to pay service tax under the provisions of this chapter or the rules made there under and has collected any amount in excess of the service tax assessed or determined and paid on any taxable service under the provisions of Chapter or the rules made there under from the recipient of taxable service in any manner as representing service tax, shall forthwith pay the amount so collected to the credit of the Central Government. (2) Where any person who has collected any amount, which is not required to be collected from any other person, in any manner as representing service tax, such person shall forthwith pay the amount so collected to the credit of the Central Government. (3) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) or sub-section (2) and the same has not been so paid, the Central Excise Officer shall serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government. As is seen from the above, if a person c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected amounts representing service tax from his individual buyers, he is required to prove that the individual service tax amounts so collected by him has been paid by himself to the Government. A plain reading of the Section makes it very clear that the person collecting such amounts is himself responsible to pay such amounts to the Government and that he is required to do so 'forthwith'. As is seen from the above, the Revenues contention is that the appellant, who has collected the amount, was required to deposit the same himself with the Revenue. We find no justification for the above stand of the department. Admittedly, the appellant is the owner of the flats, who is selling the same to its customers. The value of said flat is being recovered by the appellant from the buyer and all the taxes payable to the Government are to be collected by him from their buyers along with the cost of the flats. Whether such Service tax collected by them from the buyers is deposited directly with the department by themselves or is deposited with the Revenue by the contractor being the job worker for the appellant is immaterial as long as Service tax so collected is deposited. The Revenue cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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