MADHUKAR MITTAL Vs. CCE, PANCHKULA
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
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R.K.SINGH,MEMBER (T) -
(1.)Appeal has been filed against Order -in -Original dated 17.8.2009 in terms of which service tax demand of Rs. 57,31,718/ - alongwith interest was confirmed under construction of complex service (section 65(30a)/(105)(zzzh) of Finance Act, 1994) for the period 13.09.2006 to 13.10.2008 and equal amount of penalty under Sec. 78 ibid was also imposed.
(2.)The appellant has contended that (i) it constructed housing complex for Haryana Housing Board and its case is covered by the judgment of CESTAT in the case of Macro Marvel Projects Ltd. Vs. CST, Chennai - : 2008 (12) STR 603 (Tri. -Chennai) and A.S. Sikarwar vs. CCE, Indore - : 2012 (28) STR 479 (Tri. -Del.). (ii) It has been given 67% abatement after including value of free supplies while abatement should have been granted without including value of free supply in terms of judgment in the case of Bhayana Builders. (iii) Cum tax benefit should be granted to it. (iv) There was no willful mis -statement/suppression of facts as the figures were obtained from the Haryana Housing Board, therefore no penalty is called for and substantial part of demand is time barred. (v) benefit of reduced mandatory penalty should be extended.
(3.)Learned DR stated that it is a clear case of construction of residential complex for Haryana Housing Board and therefore the judgments in the case of Macro Mavel Projects Ltd. Vs. CST, Chennai and A.S. Sikarwar vs. CCE, Indore are not applicable to the facts of this case. He submits that the residential complex constructed by appellant had common parking area, common community hall, common park, and more than 12 residential units and so is clearly covered within the purview of construction of complex defined in Sec. 65(30a) ibid.
Learned DR fairly stated that the demand should be computed on Rs. 8,80,52,533/ - (Rs. 8,60,56,402/ - paid by Haryana Housing Board plus TDS deducted) after giving abatement of 67% and value of free supply amounting to Rs. 5,28,03,875/ - should not have been added for the computation of demand and abatement. As regards suppression, learned DR contended that the appellant had clearly suppressed the information and had not given the same inspite of being asked through several letters. Ld. DR also contended that cum tax benefit should not be granted because the amount received from the Haryana Housing Board did not include tax as Haryana Housing Board clearly stated that no tax was payable and the provision clearly existed in the contract for payment of service tax by the Haryana Housing Board.
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