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TMI Blog2024 (12) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... time and not in recurring manner during the lease period. The amount of lease rent is paid in recurring manner and the respondents are discharging Service Tax on the same. In this background the claim of revenue that payment of premium, salami, cost, price, development charges, etc. in installments is not a One Time Payment is incorrect - Consequently, the appeal of revenue is without merit and the same is dismissed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Tara Prakash, Deputy Commissioner (AR) for the Appellant Shri Jatin S Mehta, Chartered Accountant and Shri Paresh Sheth, Advocate for the Respondent ORDER This appeal has been filed by revenue against order of Commissioner (Appeal) allowing refund claim of Kindle Engineering and Construction Private Limited ( KECPL). 2. Learned AR For the revenue pointed out that Kindle Engineering and Construction Pvt Ltd ( KECPL) has paid Service Tax on the amount paid for lease of land obtained from Gujarat Power Corporation Limited (GPCL). Section 104 of the Finance Act, 1994 was introduced by Finance Bill, 2017 the Section reads as follows :- 104(i) Notwithstanding anything contained in Section 66, as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time along with interest. He argued that the said payment cannot be considered as One Time Upfront amount and therefore, the benefit of exemption granted by Section 104 of the Finance Act, 1994 introduced by Finance Act, 2017 cannot be extended to the respondents. 2.4. Learned AR relied on the decision of Tribunal in the case of Greater Noida Industrial Development Authority Vs. CCE - 2015 (38) STR 1062 (Tri.- Del.) and also decision of the Hon'ble Apex Court in the case of Panbari Tea Co. Ltd. - 1965 AIR 1871, 1965 SCR (3) 811. 2.5. Learned AR argued that in view of above discussion there is no justification in considering periodically payments made by respondent to GPCL as payment of One Time Upfront amount. 2.6. Learned AR further pointed out that dictionary meaning of Upfront payment has been wrongly relied by the Commissioner (Appeal), when the statue specifically emphasized on the word One Time Upfront amount. Therefore, he relied on the decision of the Hon'ble Apex Court in the case of Raja Benoy Kumar Sahas Roy (1957) 32 ITR 466 (SC). In the said decision Hon'ble Apex Court has held that meaning of words used Acts of parliament are not necessarily to be gathered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ont amount and the said term means that it covers the entire lease period. He argued that the said term should not be interpreted to mean that there is only one payment for the entire amount. He pointed out that the term upfront amount relates to the lifetime of lease period and not to the frequency of payments to be made. 4. We have considered rival submissions we find that Section 104 of the Finance Act, 1994 was introduced by the Finance Act, 2017 and it reads as follows :- 104(i) Notwithstanding anything contained in Section 66, as it stood prier to the 1 day of July, 2012 or in Section 668, no service tax, leviable on one time upfront amount (premium, salami, cost, price, development charges or by whatever name called) in respect of taxable service provided or agreed to be provided by a state Government Industrial Development or Undertaking to Industrial units by way of grant of long term lease of thirty years or more of Industrial plots, shall be levied or collected during the period commencing rom the 1 day of June, 2007 and ending with the 21 day of September 2016 (both days inclusive). 4.1. Notification No. 41/2016-ST dated 22.09.2016 was issued and reads as under :- In ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be charged 2) No conditional acceptance of this offer-cum-allotment shall be accepted. 3) If you opt for option 1, the total allotment price would be Rs.32.84,62,221/- ie (Rs. 38.15,24,221/- less Rs. 5.30,62.000/- paid as deposit) to be paid within 30 days from the date of this Allotment Letter Please note that the Allotment price mentioned is under review and finally approved Allotment Price shall be applicable to you If you opt for option 2. (a) Payment of 30% of the allotment price le Rs.6.13.95,266/- (Rs 11.44.57.266/-less Rs 5.30.62,000/- paid as deposit) is to be paid within 30 days from the date of this Allotment Letter, and the Balance 70% of the allotment price in 12 quarterly installments together with interest calculated at 12.50% p.a. or on such interest rate as may be fixed by the Corporation from time to time on reducing balance method as more particularly set out in Schedule hereunder. Please note that the Allotment price mentioned is under review and finally approved Allotment Price shall be applicable to you. (b) The rate of interest of 12.50% p.a. payable on the balance 70% of the allotment price shall be subject to review and revision by the Corporation periodica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en over by the respondent on 08.10 .2013 and 19.11.2013 from the Corporation of Charanka. At the material time the allotment was given at tentative rate of Rs. 419/- per Sq. Mtr. However, vide corrigendum dated 20.01.2014 the price was revised to Rs. 450/- per Sq. Mtr. and the payment options were as follows :- Option-1 100% lump sum payment. Option-2 50% down payment remaining 50% in 12 quarterly installment with 12.5% interest per annum. 4.6. The lease deed was executed on 10th day of 7th July, 2014. In terms of the lease deed the respondents were required to pay at the rate of Rs. 450/- per Sq. Mtr. apart from periodic lease rent of Rs. 1 Per Sq. Mtr. per annum with term of lease was 30 years 23rd August, 2013. 5. From the above it is apparent that the entire dispute revolves around interpretation of the term One Time Upfront Amount (called as premium, salami, cost, price, development charges or by any other name). The revenue is of the opinion that One Time Upfront Amount has to be paid in one go. If the same is paid in installments it does not remain One Time Upfront Amount . We find this stand fallacious. The term One Time Upfront Amount (called as premium, salami, cost, pric ..... X X X X Extracts X X X X X X X X Extracts X X X X
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