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TMI Blog2024 (7) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 65(105)(zzzz) and the Exclusionary Clause (d), which provided that, building used solely for residential purposes and buildings used for the purpose of accommodation including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities shall not be included in the category of immovable property for the purpose of business or commerce. The issue is no longer res integra as the same is considered on the earlier occasion also by this Tribunal in the case of AMBIENCE CONSTRUCTIONS INDIA LTD. VERSUS THE COMMISSIONER OF SERVICE TAX HYDERABAD [ 2012 (11) TMI 653 - CESTAT BANGALORE] and also in the case of M/S JAI MAHAL HOTELS PVT LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [ 2014 (7) TMI 540 - CESTAT NEW DELHI] , w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, they are not liable for any further payments towards service tax and therefore, the demand for the balance amount stands dropped. Supply of tangible goods service - letting out of the Plant Machinery to MHRIL - HELD THAT:- A perusal of Section 65(105)(zzzzj) and Section 66E(f) shows that the requirement to fall under such services remains the same, which involves supply of tangible goods without transferring the right of possession and effective control of such goods. Further, the definition also shows that service tax under SOTG is applicable when the goods are provided for use without transfer of right to possession and effective control whereas in the present case, complete control and possession of goods have been given to MHRIL and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s , etc. at various places. The entire building was let out by the appellant to M/s. Mahindra Holidays and Resorts India Limited [MHRIL] for use as hotels along with the facilities of swimming pool, bar, restaurant, conference hall, fitness centre being incidental to the said hotel in terms of the lease deed. 3. The present show cause notice dated 15.04.2015 was issued for the period September,2013 to March, 2014 on the ground that they are rendering services of renting of immovable property and supply of tangible goods and consequently, they were liable to pay service tax of Rs.14,45,614/- along with interest under Section 75 and penalty under Section 77 and 78 of the Finance Act, 1994 [The Act]. The Adjudicating Authority held that leasin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.09.2019. Perusing the earlier order of this Tribunal, we find that the issues raised therein were as under:- Whether for the period August 8/2008 to June, 6/2012, the buildings (at Corbett Ramnagar Naukuchiyatal) which were renting, covered in the definition of immovable property, and appellants were therefore liable for payment of service tax under the provisions of Finance Act, 1994 (for short Act ). Whether w.e.f. 01.07.2012, the appellants are eligible for abatement of 40% in terms of notification no.26/2012. Whether the appellants are liable for payment of service tax on letting out plant/machinery and fixtures to M/s.Mahindra Holidays Resorts India Ltd. ( MHRIL for short) under supply of Tangible Goods. ( SOTG for short). Whether ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able property , falling within the ambit of the taxable service in issue. 9. With the introduction of the Negative List w.e.f. 01.07.2012, the scheme of Service Tax had been changed and thereby all services except specified in the Negative List of exemption notification have become taxable under Section 66B. Further, under Section 66E, certain services have been constituted as declared service and clause(e) of Section 66E covers renting of immovable property as declared service . The case of the appellant is that since renting of hotels is not covered in the Negative List but had become taxable, therefore, they have paid the service tax on the letting out of the hotel building w.e.f. 1.7.2012. Notification No.26/2012 dated 20.06.2012 exempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 clarified the scope of the said entry as under:- 4.4.3 Proposal is to levy service tax on such services provided in relation to supply of tangible goods, including machinery, equipment and appliances for use, with no legal right of possession or effective control. Supply of tangible goods for use and leviable to VAT/sales tax as deemed sale of goods, is not covered under the scope of the proposed service. Whether a transaction involves transfer of possession and control is a question of facts and is to be decided based on the terms of the contract and other material facts. This could be ascertainable from the fact whether or not VAT is payable or paid. 12. In the post-Negative Era, Clause (f) of Section 66E provided as under:- Section 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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