M/S. Rohan Housing Pvt. Ltd vs Commissioner Of Service Tax ...
- CitationAppeal No. 395/2013 dated 03/09/2013 passed by Commissioner of Central Excise and Service T
Ratio decidendi
The rule this decision rests on
The Tribunal, having found the issue prima facie covered by its earlier decision in Kumar Beheray Rathi, holds that where a point is prima facie covered by binding Tribunal authority, the condition of pre-deposit may be dispensed with and the appeal decided on its merits; and that where the first appellate authority has dismissed an appeal for non-compliance with a pre-deposit stay order rather than deciding it on merits, the impugned order is set aside and the matter remanded to that authority for decision on merits without any pre-deposit.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 395/2013 dated 03/09/2013 passed by Commissioner of Central Excise and Service Tax , (Appeals), BANGALORE.]
For approval and signature:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
M/s. Rohan Housing Pvt. Ltd #1201, 1st Floor, Divyashakthi, 100 Ft. Road, Indiranagar, BANGALORE 560 038. KARNATAKA Appellant(s)
Versus
Commissioner of Service Tax Bangalore-service Tax 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA
Respondent(s)
Appearance:
Mr. Sagar Shah, CA Business Bay, Level 3, Wellesley Road, Near RTO Sangam Bridge, Pune - 411 001.
For the Appellant
Mr. Mohd. Yusuf, Addl. Commissioner (AR)
For the Respondent
Date of Hearing: 23/03/2015
Date of Decision: 23/03/2015
CORAM:
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 20810 / 2015
Per : ARCHANA WADHWA
After hearing both the sides, we find that Commissioner (A) has dismissed the appeal for non-compliance with the stay order passed by him vide which he directed the appellant to deposit entire amount of service tax of Rs.25,53,354/- along with deposit of 50% of the penalty imposed by the original adjudicating authority.
2. The issue involved is that the appellant who is a real estate developer and is collecting lump sum amount from the buyers to whom the flats have been sold, for the purpose of payment of wages to various personnel used for security, maintenance of the building, etc., can be held to be providing the service of management, maintenance or repair service so as to pay service tax. The issue is prima facie covered by the Tribunals decision in the case of M/s. Kumar Beheray Rathi vide Final Order No.A-2250-2253/2013 CSTB/C-I dated 18.11.2013 wherein under identical circumstances Tribunal had held that assessee only acted as trustee or as a pure agent and cannot be held as providing management, maintenance or repair service to the buyer of the flats. Inasmuch as the issue is prima facie covered, we dispense with the condition of pre-deposit and decide the appeal itself.
3. As Commissioner (A) has not decided the appeal on merits, we set aside the impugned order and remand the matter to him for decision on merits, without insisting on any pre-deposit. Stay petition as also appeal gets disposed of in above manner.
(Order pronounced in open court)
B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
rv 2
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