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TMI Blog2017 (8) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... to adjudicate the impugned SCN. Therefore, the impugned order is not sustainable in the eyes of law. Demand u/s 73 and section 73A of the Act - Held that: - The provisions of section 73A of the Act are applicable where the amount of service tax has been collected and retained by the assessee - As no separate amount has been collected by the appellant, no service tax is payable under section 73A of the Act by appellant. Therefore, section 73A of the Act is not invokable. Appeal allowed - decided in favor of appellant. - Appeal No. ST/58107/2013-(DB) - Final Order No. 61480/2017 - Dated:- 9-8-2017 - Mr. Ashok Jindal, Member ( Judicial ) And Mr. Devender Singh, Member ( Technical ) Shri Jagmohan Bansal, for the appellant Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently the appellant got registered under the jurisdiction of Commissioner of Central Excise, Chandigarh-II. The jurisdiction is to be determined on the date of rendering services and not subsequently. As the cause of action arose at Chandigarh and there is no notification or change of jurisdiction, in that circumstance, the adjudicating authority has no jurisdiction to decide the issue, therefore, the impugned order is to be set aside. (b) He further submits that the appellant has constructed houses for CHB who in turn let out to slum dwellers on payment of monthly lease and houses were not sold by CHB but these were allotted on lease/licence basis. It is well settled law that if a complex is constructed which is meant for personal us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax is payable on flats booked prior to construction. Further, the Hon ble Punjab Haryana High Court in the case of Bharat Bhushan Gupta vs. State of Haryana-2016 (44) STR 195 (P H) has held that no service tax is payable on construction for government authority. In that circumstance, the appellant was under bonafide belief that the unit constructed under Jawahar Lal Nehru National Urban Renewal Mission fall under the category of construction activity carried out for government authority. Therefore, there is doubt of liability of service tax. In that circumstance, the extended period of limitation is not invokable. (d) Alternatively he submits that during the period in question the appellant got a sum of ₹ 69.48 crores wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patna High Court in the case of Shapoorji Paloonji vs. CCE-2016 (42) STR 681 (Patna). (f) He further submits that the contractee may retain amount if contract includes service tax and it is not payable as held by the Hon ble Punjab Haryana High Court in the case of Malwa Engineering Works vs. Union of India Civil Writ Petition No.2032 of 2016. As the appellant has worked only for Chandigarh Housing Board so the department has no authority to claim any amount in the name of service tax under section 73A of the Act. (g) Further, no penalty is imposable on the appellant. 4. On the other hand, learned AR reiterated the findings of the adjudicating authority and submitted that the appellant has located at Bhatinda which fall unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued on 4-10-2007 whereas, the service tax was payable for the period from 16-6-2005 to 30-7-2007 and therefore, a portion of the demand is time barred. Even if a view is taken that CPWD is to be treated as separate entity, in our opinion appellant would be justified to entertain a belief that CPWD and Income Tax department are to be treated as part of the Govt. of India and therefore, services provide by him would not be liable to service tax. Further, as submitted by the appellant in his submission, the agreement also provides that in case of liability of any tax, the service receiver is liable to pay. In these circumstances, the appellants had no reason to resort to suppression or mis-declaration of the facts to avoid payment of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in the case of Shapoorji Paloonji (supra) has observed as under: 13. At this stage, another argument advanced by Mrs. Nivedita Nirvikar, needs to be discussed. She argues that the petitioner shall not be entitled to refund of the service tax as it would be a case of undue enrichment. We do not find any merit in this argument as well. The payment of service tax has not been made by the numerous consumers and collected by the petitioner. It is paid by the petitioner alone. The petitioner is entitled for the reimbursement of the amount of service tax by Respondent No. 4 in terms of the letter of award of contract. Such payment of service tax by the petitioner is not indirect collection of taxes but the direct payment by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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