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TMI Blog2019 (5) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... PS - Period Post-01.06.2007 (June 2007 to March 2008) - HELD THAT:- Matter remanded to the original authority to substantiate their claim that they are entitled to avail cenvat credit of service tax paid by the owners of the property. Demands made under CICS / CCS - Period Post-01.06.2007 - HELD THAT:- The demands relating to composite works contract along with interest for the period 2008-09 cannot sustain in view of this Bench decision in REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST CENTRAL EXCISE, CHENNAI [ 2018 (9) TMI 1149 - CESTAT CHENNAI] and same will require to be set aside - Although there is an allegation that appellants have wrongly adjusted excess service tax paid, it has been clarified by the appellants that they have not adjusted any excess service tax paid by them, rather, they have not paid service tax on the amounts received during the period from May 2008 to March 2009 as these amounts have been appropriated towards cost of the land sold - The allegation of the department that irregular adjustment has been done by the appellants fails to convince us. Demands made under CICS / CCS - denial of abatement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of both the SCNs, the Commissioner vide a common Order-in-Original No.53 & 54/2011 dt. 25.11.2011 confirmed the aforesaid demands along with interest and imposed penalty Section 78 in respect of SCN dt. 24.06.2009 and penalty under Section 76 in respect of SCN dt. 23.10.2009. He also imposed penalty of ₹ 5000/- under Section 77 ibid. Hence Appeals ST/258/2012 & ST/259/2012. 2.2 When the matter came up for hearing, on behalf of the appellants, Ld. Advocate Shri G. Natarajan submitted that most of the demands confirmed in the aforesaid impugned order to these appeals now stands covered by the decision of Supreme Court in the case of CCE Vs Larsen & Toubro Ltd. - 2015 (39) STR 913 (SC) and of the Tribunal decision in Real Value Promoters Pvt. Ltd. Vs CCE - 2018-TIOL-2867-CESTAT. 2.3 Ld. Advocate's contentions in respect of the item wise / annexure wise demands that were confirmed in respect of ST/258/2012 is as under : (i) Demand of service tax of ₹ 94,62,842/- under Commercial or Industrial Construction Service (CICS) is not sustainable being composite contract involving transfer of property in goods prior to introduction of Works Contracts Service in view of Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d adjustment of excess service tax paid, which is not permissible. 61,04,851 Total 5,79,02,314/- He submits that aforesaid demands raised vide Sl.No. (i) to (v) under the category of CICS / CCS are for the period pre-1.6.2007 and post-1.6.2007, hence the issue stands squarely covered by Apex Court decision in L & T Ltd. (supra) and this Bench decision in Real Value Promoters Pvt. Ltd. (supra). He prays that following the ratio already laid down in these decisions, Appeal ST/259/2012 may be allowed. 2.5 So also in Appeal ST/40901/2014, the details of SCN, period of dispute, disputed amounts etc. as furnished by Ld. Advocate are tabulated as under : S.NO. SCN NO & DATE PERIOD DETAILS OF DEMAND OIO AMOUNT CONFIRMED 1 124/2013 Dt. 20.04.2013 April 2009 to March 2012 Annexure I to SCN - Demand of ST under CICS - Service provided to landowners - Prince Infocity II, Kottivakkam (abatement denied on the ground that the appellant had availed cenvat credit) STC/001/2014-C(LTU) dt. 4.2.2014 ₹ 9,20,20,954 2 -do- April 2009 to May 2011 AnnexureI I to SCN - Demand of ST under CICS - Service provided to buyers - Prince Infocity II, Kottivakkam (abatem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el submits that demand in respect of Sl.No.6 is not disputed by appellant and paid by them. However, interest amount in respect of Sl.No.6 (₹ 57,41,432) and Sl.No.7 (₹ 33,54,564) relates to calculation of interest for the delayed payment of service tax which needs verification by lower authority. Sl.No.9 (₹ 2,01,305/-) also requires remand as the demand is not clearly mentioned. Hence he prays for remand of the matter on the issue of interest liability of these amounts. 2.8 As regards Sl.No.10 (₹ 16,19,255/-) pertaining to reimbursable expenses collected from tenants for electricity, water, diesel etc., he placed reliance on Apex Court's judgment in UOI Vs Intercontinental Consultants and Technocrats Pvt. Ltd. - 2018 (10) GSTL 401 (SC). 2.9 As regards demand amount of ₹ 11,57,494/- shown in Sl.No.11 above, they are not disputing this demand and have paid the same with interest of ₹ 37,448/-. 3.1 So also in Appeal ST/1/2012, the details of SCN, period of dispute, disputed amounts etc. as furnished by Ld. Advocate are tabulated as under : S.NO. SCN NO & DATE PERIOD DETAILS OF DEMAND OIO AMOUNT CONFIRMED 1 148/2007 DT. 23.08.2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one through the facts. 5.1 We intend to take the issues appeal wise. 5.2 Demands made under category of CICS / CCS : (i) Appeal ST/258/2012 Demand ₹ 94,62,842/- under CICS on composite contract with interest SCN No.256/2009 dt. 24.06.2009 Impugned Order-in-Original No. 53/2011 dt. 25.11.2011 Period: Post-01.06.2007 Project: Thoraipakkam STP, Ambattur STP and PGW (ii) Appeal ST/258/2012 Demand: ₹ 5,18,152/- on alleged short payment of service tax in respect of building sold to Mr. Hariharan Padmanabhan - Project "Prince Infocity" with interest Impugned OIO No.53/2011 dt. 25.11.2011 We find that the Ld. Advocate is correct in his assertion that the demands in these impugned orders which relate to composite contract will not be liable to service tax prior to 1.6.2007 by virtue of the Apex Court judgement in L & T Ltd. (supra) and even for the period post-1.6.2017 as held in Real Value Promoters (supra). In the event, the demand of ₹ 94,62,842/- with interest and ₹ 5,18,152/- towards short payment of service tax relating to composite works contract cannot be sustained and therefore that portion of the impugned order to the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,06,22,800/- CCS with interest SCN No.257/2009 dt. 23.10.2009 Impugned OIO No.54/2011 dt. 25.11.2011 Period: Post-01.06.2007 Project: Sriperumbudur Project (iii) Appeal ST/259/2012 Demand ₹ 7,39,011 under CICS with interest SCN No.257/2009 dt. 23.10.2009 Impugned OIO No.54/2011 dt. 25.11.2011 Period: Post-01.06.2007 Project: Kottivakkam Project (iv) Appeal ST/259/2012 Demand ₹ 3,45,27,514/- under CCS with interest SCN No.257/2009 dt. 23.10.2009 Impugned OIO No.54/2011 dt. 25.11.2011 Period: Post-01.06.2007 Project: Residential Construction (v) Appeal ST/259/2012 ₹ 61,04,851/- short paid amount towards adjustment of excess ST Paid -demand under CICS. SCN No.257/2009 dt. 23.10.2009 Impugned OIO No.54/2011 dt. 25.11.2011 Period: Post-01.06.2007 As already held above, the aforesaid demands relating to composite works contract along with interest in respect of Appeal ST/259/2012 for the period 2008-09 cannot sustain in view of this Bench decision in Real Value Promoters (supra) and same will require to be set aside, which we hereby do. Although there is an allegation that appellants have wrongly adjuste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 43,49,793/- with interest under CCS (short payment) SCN No.124/2013 dt. 20.04.2013 Impugned OIO No.1/2014 dt. 04.02.2014 Period: April 2009 to August 2011 Project: Prince Garden Woods Project In respect of the above demands, the appellants have come in Appeal against denial of abatement on the ground that the appellant had availed cenvat credit. As discussed in the preceding paragraphs, demands relating to composite works contract along with interest in respect of Appeal ST/40901/2014 for the period 2009-10 to 2011-2012 cannot sustain in view of this Bench decision in Real Value Promoters (supra) and same will require to be set aside, which we hereby do. In the result, that portion of the impugned order confirming the above demands with interest in respect of Appeal ST/40901/2014 will not sustain and will require to be set aside, which we hereby do. Appeals ST/40901/2014 on this issue is allowed with consequential benefits, if any, as per law. 5.6 (i) Appeal ST/40901/2014 Demand ₹ 3,69,76,010 under WCS SCN No.124/2013 dt. 20.04.2013 Impugned OIO No.1/2014 dt. 04.02.2014 Period: April 2010 to March 2012 Project: Prince Village Interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgement in Intercontinental Consultants and Technocrats (supra) would apply in all fours to the issue at hand. The said demand cannot then survive and is set aside in toto. Appeal ST/40901/2014 is allowed on this issue with consequential benefits, if any, as per law. (ii) Appeal ST/40901/2014 Demand ₹ 2,01,305/- short payment under RIPS SCN No.124/2013 dt. 20.04.2013 Impugned OIO No.1/2014 dt. 04.02.2014 Period: July 2011 & November 2011 This demand has been raised under RIPS on the ground that certain amounts received from the tenants are not included for the payment of service tax. Ld. Advocate has contended that grounds for this demand is not clear. However, from para-6 of the SCN No.124/2013 dt.20.4.2013 (page 9), raison d'etre of the said demand has been amplified and it has been clearly mentioned that demand relates to short payment of service tax under Renting of Immovable Property Service (RIPS) under the category of letting out of premises by assessee to their clients namely 3i Infotech, CSS Corp, Optimus Global Syntel etc. In consequence, the plea of the appellants that 'demand not clear' does not have any merit. We therefore do not find any reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OIO No.23/2011 dt. 26.08.2011 (vi) Appeal No.ST/1/2012 Demand ₹ 33,75,598/- with interest under CCS service provided to landowners under joint agreement. SCN No.148/2007 dt. 23.08.2007 read with corrigendum dt. 4.1.2008 OIO No.23/2011 dt. 26.08.2011 Project : Kandanchavadi Project (vii) Appeal No.ST/1/2012 Demand ₹ 10,11,386/- with interest under CCS SCN No.148/2007 dt. 23.08.2007 read with corrigendum dt. 4.1.2008 OIO No.23/2011 dt. 26.08.2011 Period : April 2007 Project : Prince Green Wood As already held above, the aforesaid demands relating to composite works contract along with interest in respect of Appeal ST/1/2012 for the period 10.09.2004 to 30.04.2007 cannot sustain in view of this Bench decision in Real Value Promoters (supra) and same will require to be set aside, which we hereby do. In the result, that portion of the impugned order confirming the above demands in respect of Appeal ST/1/2012 will not sustain and will require to be set aside, which we hereby do. Appeals ST/1/2012 on this issue are allowed with consequential benefits, if any, as per law. (vii) Appeal No.ST/1/2012 Demand ₹ 24,09,527/- with interes ..... 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