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TMI Blog2018 (2) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... s not make the stadium as a commercial building - the sports facility constructed by the appellant cannot be considered as a commercial construction liable to Service Tax. Demand of interest - construction of independent duplex houses - Held that: - having already collected and paid the tax, the appellants are not disputing on merit - Since the Tax liability may not stand there can be no question of interest payment on such non-existing tax liability. Appeal allowed - decided in favor of appellant. - ST/56833/2013-[DB] - A/58644/2017-CU[DB] - Dated:- 13-12-2017 - Mr. S.K. Mohanty, Member (Judicial) And Mr. B. Ravichandran, Member (Technical) Present Shri B.L. Narsimhan Rachit Jain, Advocate for the appellant Present Shri Amresh Jain, AR for the respondent ORDER Per: B. Ravichandran 1. The present appeal is against the order dated 10/01/2013 of Commissioner, Central Excise, Delhi-I. The brief facts of the case are that the appellants are engaged in construction activities. They have entered into an agreement with M/s IOC for construction of expansion project of Panipat Refinery Township mainly consisting of residential units. In pursuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y amount representing Service Tax to the appellant. c. On the second issue regarding construction of stadium/ practice venue for Common Wealth Games at JMI University, New Delhi he submitted that the sports facility developed specifically for practicing for Common Wealth Games cannot be considered as a commercial construction. Even after Common Wealth Games, the venue/stadium is intended and used only for sports activities. Collection of some membership fee or usage fee by itself will not make the constructed stadium as a commercial building. He referred to certain decided cases in similar set of facts, to support his submissions. d. Regarding interest demand he submitted that they have already discharged Service Tax, which is in any case not liable for payment. The construction by them is 30 number of independent duplex houses at Noida. The Original Authority held that there could have been common facilities like water supply etc by the Noida authorities and accordingly held it to be taxable under construction of residential complex service . The Ld. Counsel submitted that these are independent residential units and have no common facilities within the approved layout ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (4) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (3), determine the amount due from such person, not being in excess of the amount specified in the notice, and thereupon such person shall pay the amount so determined. (5) The amount paid to the credit of the Central Government under sub-section (1) or sub- section (2) or sub-section (4) shall be adjusted against the service tax payable by the person on finalization of assessment or any other proceeding for determination of service tax relating to the taxable service referred to in subsection (1). (6) Where any surplus amount is left after the adjustment under sub-section (5), such amount shall either be credited to the Consumer Welfare Fund referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the liability to compensate/reimburse to service tax liability of the service provider, is on the service recipient. A factual finding that a person has collected service taxis a condition precedent for passing an order under Section 73A(2) read with sub-section (4) thereof. Sub- section (4) specifically enjoins that an order should be passed under this provision only after considering the representation, if any, made by the person on whom the notice is served under sub-section (3) and to determine the amount due from such person, not being in excess of the amount specified in the notice. Subsection (3) of Section 73(A) requires a notice to be issued to show cause why the amount, as specified in the notice, in respect of a liability arising under Section 1 and 2, should not be paid by the Noticee to the credit the Central Government. 6. Examining the similar situations with reference to sales tax, the Hon ble Bombay High Court in the case of Mather Platt Ltd. 1985 (53) STC 104 observed that so long as the purchaser is not led to believe that the amount charged to him is the amount which the seller would be liable to pay as tax to the Government when he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2005 (191) ELT 885 (Tri.-Bang.)] held as below:- In the present case also, the sale price, no doubt, includes all statutory levies payable. That means, after some time the seller should not come to the buyer for extra amounts on the plea that further duty has to be paid to the Department. The presumption that the sale price includes duty erroneously paid in excess has no basis. More precisely, the sale price includes only the duty payable. In these circumstances, there is no question of unjust enrichment. We allow the appeal with consequential relief. 9. In view of the above discussion and reading closely the provisions of Section 73A along with the findings in the impugned order we are of the considered view that the provisions of Section 73A has no application to the facts of the present case. Accordingly, the demand in terms of Section 73A (2) will not survive. 10. On the second issue we note that the practice venue for the Common Wealth Games cannot be considered as a commercial building. The said stadium or facility is mainly used for sports activities. This is not disputed. The impugned order held against the appellant only on the ground that fee/ charges ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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