Custom, Excise & Service Tax Tribunal
M/S Barshi Municipal Council vs Commissioner Of Central Excise, ... on 9 November, 2016
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. I APPEAL NO. ST/417/12-Mum (Arising out of Order-in-Appeal No. PIII/RS/74/2012 dated 16.03.2012 passed by the Commissioner of Central Excise (Appeals), Pune-III.) For approval and signature: Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. C.J. Mathew, Member (Technical) =====================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy : Seen
of the order?
4. Whether order is to be circulated to the Departmental : Yes
authorities?
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M/s Barshi Municipal Council
Appellant
Vs.
Commissioner of Central Excise, Pune-III
Respondent
Appearance:
Shri C.S. Biradar, Advocate
for Appellant
Shri M.P. Damle, Assistant Commissioner (A.R.)
for Respondent
CORAM:
HONBLE SHRI M.V. RAVINDRAN, MEMBER (JUDICIAL)
HONBLE SHRI C.J. MATHEW, MEMBER (TECHNICAL)
Date of Hearing: 09.11.2016
Date of Decision: 09.11.2016
ORDER NO.
Per: M.V. Ravindran:
This appeal is directed against Order-in-Appeal No. PIII/RS/74/2012 dated 16.03.2012 passed by the Commissioner of Central Excise (Appeals), Pune-III.
2. Heard both sides and perused the records.
3. The issue that falls for consideration is whether the appellant is liable to discharge Service Tax liability under the category of renting of immovable property during the period 01.06.2007 to 30.09.2010.
4. On perusal of the records, we find that the Service Tax liability under the head renting of immovable property was taxable from 01.06.2007. It is undisputed fact that the appellant Barshi Municipal Council leased their shops to various commercial and business entities and collected, rent which is taxable under the category renting of immovable property. There is no dispute that amount is rent and taxable, however, learned Counsel only submits that, for the first year calculation of Service Tax is on entire amount of Rs. 8,94,226/- received as rent, without extending the benefit of small scale services provider of Rs. 8.0 lakhs and also that the amount received by the appellant during the relevant period were to be considered as cum-tax, eligible benefit should have been extended and since the issue was in dispute before the Hon'ble Apex Court, penal liability should be set aside. He would rely upon final Order No. A/86522-86523/16/STB dated 01.03.2016 in the very same appellants case wherein penalty was set aside by this Bench.
5. Learned departmental representative reiterates the findings of the lower authorities.
6. We find that liability to pay tax on renting of immovable property service is not in dispute as appellant, though Municipal Corporation have leased their commercial property during the relevant period and collected rent. The Service Tax liability and interest thereof in accordance with law is upheld. However, the Service Tax liability needs to be reworked out and we do find force in the contention raised by the learned Counsel that for the first year, i.e. 01.06.2007 to 31.03.2008 benefit of small scale service provider exemption needs to be extended. For the entire period in question i.e. 01.06.2007 to 30.09.2010 benefit of cum-tax value needs to be extended to appellant. The lower authorities are directed to re-work out the service tax liability and interest thereof; the appropriated the amount already deposited by the appellant towards liability and the interest thereof. As regards penalties, we find that in appellants own case in an identical issue, we have set aside the penalty invoking the provision of Section 80 of the Finance Act, 1994. We do not find any reason to deviate from such a view already taken. Accordingly by invoking the provision of Section 80, we set aside the penalty imposed on the appellant.
7. The appeal is disposed of as indicated herein above.
(Operative portion of the order pronounced in open Court) (C.J. Mathew) (M.V. Ravindran) Member (Technical) Member (Judicial) Sp 4 APPEAL NO. ST/417/12-Mum