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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 ..... r the above proposition they have placed reliance on the Chartered Accountants certificate and has also placed various documentary evidence before the adjudicating authority - Revenue directed to verify facts - Matter remanded back - Decided in favour of assessee. - Appeal No. 754 of 2008 - Cu[DB] - ORDER NO . FO/ 51331/2014-ST(Br) - Dated:- 1-4-2014 - Ms. Archana Wadhwa and Mr. Rakesh Kumar, JJ. For the Appellant : Shri K K Anand , Advocate For the Respondent: Shri Govind Dixit, DR JUDGEMENT Per Ms. Archana Wadhwa(for the Bench): The appellants are engaged in the business of real estate development and had undertaken the construction of flat known as Jaipuria Sun Rise Flats and Commercial complex known as Jaipuria Sun Rise Plaza at Indirapuram, Ghaziabad. They were getting the said flats constructed from various contractors who were executing the various jobs of constructions of flats and commercial space. The said projects were launched in the year 2004, when there was no Service tax on the construction activities. However, when such flats / commercial spaces was in the process of being constructed, Service tax was introduced on construction of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to the contractor; that the contractor have deposited the said service tax with the Revenue; that they are not registered with the service tax department and as such, have not paid any service tax directly. 3. Revenue by entertaining a view that in terms of provisions of section 73 A of the Finance Act, 1994, any person who has collected any amount, which is 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 Central government, initiated proceedings against the appellant by way of issuance of show cause notice dated 1.4.08. The appellants were called upon to show cause as to why the service tax of Rs.3,24,81,023/- (Rupees three crores twenty four lakhs eighty one thousands and twenty three only) should not be demanded and recovered from them under sub section 3 of 73A of the said Act along with confirmation of demand and imposition of penalties. The appellants challenged the said issuance of show cause notice on jurisdiction as also on merits. It was specifically contended by the appellant that the service tax collected by them from their customers stand deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiate proceedings against them or to adjudicate the same. It is his submission that incidence of tax arise at the time of rendering of service which was actually at Ghaziabad and the Service tax officers having jurisdiction over the places from where the service is being provided would have upon the proper officer for issuance of show cause notice or for adjudication of the matter. 7. We find that appellants are admittedly Delhi based having their office at Barakhamba Road, New Delhi. The dispute in the present appeal is not a direct dispute of short payment / non-payment of service tax in respect of flats being constructed at Ghaziabad. Hence it is not a case whether the Ghazibad service tax officers would be having proper jurisdiction. The Revenue s allegation is that the appellant collected the amount from their customers representing the same as service tax and did not deposit the same with the department. As such, proceedings have to be initiated by the officers having jurisdiction over the location of the person, against whom such allegations are being made. As such, we found no merits in the above contention of the learned advocate. 8. As regards merits of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department. 9. The only reason adopted by the adjudicating authority for confirmation of demand is that the appellants have himself deposited the amount of service tax with the Government. For better appreciation, we reproduce the relevant para from the impugned order. Accordingly, the notice is required to deposit the amount so collected as representing service in any manner forthwith to the credit of the Central Government. The notice has argued that their construction contractors have paid the required service tax to the department and that they were only passing it on to the ultimate customers, as service tax is an indirect tax, to be borne by the ultimate customers. I accept that service tax is an indirect tax and would form part of the final cost of the service but the issue to be decided is that whether or not a person, who is not an assessee, can recover any amount from anyone as representing service tax. The obvious answer is no. Otherwise, such person is required to pay forthwith the amount to the Government. The Department is not required to go into details of the matter i.e. whether or not the amount so collected by the said person is actually the amount of Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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