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TMI Blog2024 (8) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of maintenance of the building and to cover the eventual default made by any of the flat owners for payment of monthly maintenance charges. As per the Agreement with the flat owners, the said amount is liable to be refunded to them within the period of Six months from the date of termination of the said agreement. The Adjudicating Authority observed that the genuineness of the said term is very much doubted inasmuch as the Appellant had not produced any evidence to show that the said IFMS was ever refunded to anyone. The amount is refundable in case of termination of the ownership agreement and if no such termination has taken place till date, the amount would not be refunded. As long as the provisions for refund of the said amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FMS charges, EDC/IDC, power back up charges based on the price list - service tax is not payable on such hypothetical calculation, there being no actual consideration towards these, which is an admitted fact - service tax levied in this manner based on the price list is wrong, when there is no actual receipt of consideration under these heads. There are no reason to take a different view. Accordingly demand on the said account is set aside, alongwith setting aside of penalty - Appeal filed by the Appellant is allowed. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Ms. Stuti Saggi, Advocate for the Appellant Shri Manish Raj, Authorized Representative for the Respondent ORDER The Appellant is provider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994. (b) I confirm and demand service tax amounting to Rs. 7,87,474/- (Rupees Seven lakh eighty seven thousand four hundred and seventy four only) as re-calculated on PLC against M/s Vipul IT Infrasoft Pvt. Ltd; A-4, Logix Technova, Sector-132, Noida, under Section 73(2) of the Finance Act, 1994. (c) I order the charging and recovery of interest on the service tax amount as confirmed in (a) and (b) above under Section 75 of the Finance Act, 1994 at the applicable rates. (d) I impose a penalty of Rs. 24,94,018/-(Rs. 17,06,544/- + Rs. 7,87,474/-) (Rupees Twenty four lakh ninety four thousand and eighteen only) upon M/s Vipul IT Infrasoft Pvt. Ltd; A-4, Logix Technova, Sector-132, Noida, under Section 78 of the Finance Act, 1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asmuch as the Appellant had not produced any evidence to show that the said IFMS was ever refunded to anyone. We really fail to understand the said reasoning of the Adjudicating Authority. The amount is refundable in case of termination of the ownership agreement and if no such termination has taken place till date, the amount would not be refunded. As long as the provisions for refund of the said amount in the agreement itself is there, it has to be considered that the said amount is refundable and was towards security deposit and was not for the purpose of providing any services, so as to levy tax on the same. 7. In any case, we also note that the issue stands decided by precedent decisions of the Tribunal. Reference can be made to the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellant against such charges and as such, as per the provisions of section 66F(3)(a) of the Act, these services would form part of construction services especially when there are no specific provisions for taxing the same. 10. The Appellant submits that the PLC charges collected by the Appellant from it's customers is not a consideration for any individual service rendered by the Appellant to it's customers. In fact, the question of PLC arises only because the Appellant has undertaken construction of complex service. As such PLC are charged by the Appellant during the construction of the building and are therefore, naturally bundled with the service of construction of building. 11. In view of the above submissions, if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apartment (RWA) for future repair, maintenance or any emergency expenditure, etc. 14. We take notice that service tax law was revamped w.e.f. 01.07.2012 by bringing in various changes. We also take notice of the TRU/CBEC letter dt. 20.02.2010 regarding the scope of valuation of taxable amount in respect of residential complex service, which was introduced in the year, 2010. With effect from 01.07.2012, Section 66F have been added to the Finance Act, which deals with classification of service in case of bundled services. Section 66 F (1) provides that - unless otherwise specified, reference to a service (hereinafter referred to as main service) shall not include reference to a service which is used for providing main service. Further, where ..... X X X X Extracts X X X X X X X X Extracts X X X X
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