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TMI Blog2019 (7) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... r providing taxable services under the category of 'Real Estate Agents' as defined under Section 65(105)(zzzz) of the Finance Act, 1994 chargeable to service tax under Section 66 (up to 30/06/2012) and service as defined under Section 65B(44) of the Finance Act, 1994 chargeable to service tax under Section 66(B) ( w.e.f. 01/07/2012). The details pertaining to the service tax demand is summarized below:- Period involved Amount demanded 2005-06 to 2009-10 Service Tax -Rs. 1,77,40,905/- Penalty - Rs. 10,000/- u/s 77 Penalty- Rs. 1,77,40,905/- u/s 78 2.2. The appellant had entered into an agreement with M/s. Tishman Speyer Properties L.P., New York for supply of the technical knowledge, skill, process and other assistance to them in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax for the month of December 2007 works out to Rs. 42,64,303/- and service tax paid by the appellant was only Rs. 42,27,582/- thereby amounting to short payment of Rs. 36,721/-. The CERA(AG) Audit Party was reviewed the ST-3 returns for the period from October 2008 to March 2009 and observed that the Closing Balance of CENVAT credit for the month of March 2009 was shown as Rs. 8,67,366/- (BED) and Rs. 25,932/- (CESS) but Rs. 9,33,424/- (BED) and Rs. 27,913/- (Cess) was shown as Opening Balance for the month of April 2009. Therefore the appellant have wrongly availed the CENVAT credit to the tune of Rs. 68,039/-. During the scrutiny of sales invoice and debit notes, it was observed that the appellant have raised the service tax and cess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id towards alleged import of service, statement of expenditure incurred in foreign currency etc. have been completely ignored. All these documents have been ignored without giving any reasoning. He further submitted that the case of the Department right from the stage of issuance of show-cause notice is that the appellants have received management of Business Consultant Service but neither in the show-cause notice nor the original order explains as to how the appellants have received Management or Business Consultant Service. He further submitted that the appellant in fact have not received any Management or Business Consultant Service and as per the terms of the agreement between the appellant and Tishman, USA, an employee of the Tishman U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of service and hence no service tax can be demanded on the same whereas the Commissioner(Appeals) has wrongly confirmed the demand of tax on the above transaction in violation of Rule 6 of Service Tax Rules, 1994 as it stood during the diputed period. He also submitted that there is no finding on this crucial submission which formed part of the grounds of appeal and the additional submission filed before the learned Commissioner(Appeals). he further submitted that the Commissioner(Appeals) in the impugned order has wrongly observed that the appellants have not submitted the documents in support of their submissions which is factually incorrect whereas the appellants have submitted all relevant documents but the same were not considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice has been issued in pursuance to the audit conducted by the Department. In support of this submission, he relied upon the following decisions:- i. Continental Foundation Vs. CCE [2007(216) ELT 177 (SC)] ii. CCE Vs. Chemphar Drugs 1989(40) ELT 276 (SC)] 5. On the other hand, the learned AR defended the impugned order and submitted that the appellant failed to produce all the documents before the Commissioner(Appeals) to justify their defence and in the absence of proper documents, the Commissioner(Appeals) has rightly upheld the Order-in-Original. 6. After considering the submissions of both sides and perusal of the records, we find that the appellant while filing the appeal before the Commissioner(Appeals) has annexed document ..... X X X X Extracts X X X X X X X X Extracts X X X X
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