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TMI Blog2018 (11) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... industrial construction service and also under construction of residential complex service. During the scrutiny of their records, the Department observed that they are paying service tax on the service amount received at the time of giving possession of the constructed shop/house towards providing services to their clients. The said amount of service tax is calculated on 33 per cent of the sales amount of the property by availing abatement as provided under Notification No. 1/2006/ST dated 1/3/2006. The Department also observed that the appellants were not paying service tax on the amount received by them at the time of the receipt of the amounts resultantently the service tax was not paid on the total amount received toward taxable servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be quantified at the rate of 75 per cent abatement. Order is accordingly prayed to be set aside. It is also submitted that the extended period of limitation has wrongly been invoked by the department while issuing show cause notices and suppression of fact has also been wrongly alleged, while imposing the penalty as there was no intent to evade the tax initially for the reason that the amount received was not taxable subsequently for the reason that the appellants were entitled for abatement. The order to that extent is also prayed to be set aside. Appeal is prayed to be allowed. 5. Ld. DR while justifying the order has submitted that the Commissioner has duly appreciated Section 67 and Section 68 of the Finance Act while adjudicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y there is no denial of fact that the levy in question was imposed for the first time by the amendment to Finance Act 1994 with effect from 1/07/2010 to Section 65(105) (zzzh) Act as follows; "Explanation.- For the purpose of this sub-clause, construction of a complex which is intended for sale, wholly or partly, by a builder or any person authorised by the builder before, during or after construction(except in cases for which no sum is receive from or on behalf of the prospective buyer by the builder or a person authorised by the builder before the grant for completion certificate by the authority competent to issue such certificate under any law for the time being in force) shall be deemed to be service provide by the builder to the buye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices of appellant were not taxable prior 1/07/2010. When the explanation as inserted in Section 65(105)(zzzh) is read along with clarification given by CBEC vide letter No. 334/3 TRU dated 1/07/2010, it again becomes amply clear that if agreement is entered into or any payment is received for sale of complex or apartment in residential complex service tax will be leviable on such transaction only with effect from 1/07/2010. As a result of entire about discussion we hereby hold that the impugned demand for the period since 1/04/2007 till 30th June 2010 is not sustainable the same has wrongly been confirmed, accordingly is hereby set aside. 11. Now, coming to the demand for the remaining period, the computation thereof so far as abatement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged suppression. Otherwise also to invoke the extended period of limitation heavy burden rests upon the Department to proof some positive Act on account on the assessee other than the mear inaction or failure to discharge the liability. The Hon'ble Apex Court in Gopal Zarda Udyog vs. CCE Delhi 2005 (188) E.L.T 251 SC has held that when asseessee has a reasonable belief that he is not required to give a particular information only normal period of limitation that is 1 year is applicable. In the present case also the apparent allegation is delay in discharging the liability the allegation as grave as of misinterpretation and suppression are not at all attributable. For the similar reason penalty also will not ordinarily to be imposed unl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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