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TMI Blog2015 (10) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... . ST/546/2011, Cross-Objection No. ST/CO-30/2012 - - - Dated:- 3-9-2015 - M V Ravindran, Member (J) And C J Mathew, Member (T) For the Appellants : Shri S.S. Gupta, Chartered Accountant For the Respondent : Shri V K Singh, Special Counsel ORDER Per M V Ravindran This appeal is directed against Order-in-Original No. 31/BR-31/ST/Th-I/2011 dated 29/06/2011 passed by the Commissioner of Central Excise, Thane-I. 2. The issue involved in this appeal is regarding service tax liability on the appellant under the category of GTA service for the period January 2005 to September,2007 and service tax on the other category of Management, Maintenance or Repair Service' for the period June 2005 to September 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Management and Transfer) Act, 1963 held that the amounts collected by the appellant therein are not liable to be taxed under maintenance or repair service to the buyer. It is his submission that identical view has been taken by the bench in the case of Goel Nitron Constructions vs. Commissioner of Central Excise, Pune - III - Appeal No. ST/185/09-Mum, ST/307/10-Mum ST/308/10-Mum. 4. The learned Departmental Representative, on the other hand, submits that the appellant had collected an amount from the prospective buyers in respect of maintenance or repairs form residential units as also the commercial units. It is his submission that in respect of commercial units the tax liability arises as the commercial units are not shops which ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in respect of common electrical and water pumps and other installations. In addition they are paying for the maintenance and repair of common areas and facilities, wages or watchmen, sweepers etc. and some expenses relating to maintenance of the housing blocks. 6.2 We have also gone through the relevant provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of construction, sale, management and transfer) Act, 1963. We find that the Section 5 and 6 provides as under:- SECTION 05: PROMOTER TO MAINTAIN SEPARATE ACCOUNT OF SUMS TAKEN AS ADVANCE OR DEPOSIT AND TO BE TRUSTEE THEREFOR; AND DISBURSE THEM FOR PURPOSES FOR WHICH GIVEN The promoter shall maintain a separate account in any bank of sums taken, by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the transfer of the property, to pay such outgoings and penal charges (if any) to the authority or person to whom they are payable and to be responsible for any legal proceedings which may be taken therefor by such authority or person. From the above sections, it is clear that under the Act the appellants are obliged to maintain a separate account in any bank of the deposits taken and use the same amount towards the outgoings. Further section 6 puts responsibility for payment of outgoings on the appellants till the property is transferred. 6.3 We also note that at the relevant time the provisions of Finance Act are as under:- Maintenance or repair means any service provided by - (a) Any person under a contract or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... category Management, Maintenance or Repair Service' for the amounts collected by them from the prospective flat owners. 8. As regards the penalty imposed, we find that bulk of the demand is on Management, Maintenance or Repair Service' and having accepted the contention of the appellant, we find no reason for visiting the appellant with any penalty. As regards the penalty imposed for non-discharge of service tax liability under the category of GTA service, we hold that the appellant having discharged the service tax liability along with interest thereof, and the amount also being negligible, there is no reason to visit the appellant with penalty on this point also. 9. Accordingly the appeal is disposed of as indicated herein ..... X X X X Extracts X X X X X X X X Extracts X X X X
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