The main legal point established in this judgment is that the amounts collected by the assessee for maintenance and repairs of the property do not constitute taxable service under the Finance Act, 1994.

S.C. Dharmadhikari, J.

1. All these appeals involve similar questions of law and facts and were heard together. They are, therefore, being disposed of by this common Judgment and Order.

2. The Central Excise Appeal No. 289 of 2016, from which we take the facts, is directed against the order of the Customs, Excise & Service Tax Appellate Tribunal ("Cestat" for short), West Zonal Bench, Mumbai, dated 7.3.2016.

3. By the order under appeal, the Cestat held that the assessee before us could not be called upon to pay service tax on amounts which are collected as maintenance charges for upkeep of the apartment or premises. The Cestat further held that the issue is settled in favour of the assessee and against the Revenue by its prior orders.

4. To appreciate the correctness of this legal conclusion and finding that even otherwise the appeals involve substantial questions of law, we proceed to admit these appeals on the following substantial questions of law:"

(a) Whether the Cestat was right in holding that the assessee was not providing Management, Maintenance or Repair Service by collecting amount from prospective flat buyers, for maintaining the building, in the guise of deposits which is not returnable? Whether the Cestat has erred in holding that assessee is providing statutory service and has rendered definition provided under Section 65(105)(zzg) of Finance Act as null and void by accepting that he is not providing Management, Maintenance or repair service by maintaining the building and collecting amount for that or not?

(b) Whether the Cestat was right in setting aside the interest and penalty on the assessee?"

5. Since Ms Cardozo and Mr. Raichandani, as also Mr. Patil have made extensive submissions and we heard them at length, we dispose of these appeals with their consent by this Judgment and Order.

6. It is common ground that the assessee before us is in the business of construction of buildings and is a builder and developer. Apart therefrom, what is urged is that on investigation by Officials of the Anti Evasion, Service Tax II, Mumbai, it was found that the assessee was engaged in providing works contract service during the period October, 2008 to March, 2013 and was not discharging the service tax liability. The service tax of Rs. 9,57,98,251/- under the category of works contract service, Rs. 25,77,710/- under the category of management, maintenance or repair Service, totally amounting to Rs. 9,83,75,962/- was due and payable by the assessee for the aforesaid period. The assessee applied for service tax registration on 28.11.2011, for construction of residential complex service and after the visit of the Officers of the Anti-Evasion Cell. The assessee was granted registration.

7. A Show Cause Notice dated 28.22.2014, alleging as above, was issued and the demand was raised on the basis that the service tax amount collected from customers during the period 1.7.2010. to 31.3.2011. but not paid in the Government treasury, is the subject matter and that was quantified at Rs. 1,23,68,420/-.

8. The assessee admitted that it had not applied for service tax registration even though it provided taxable service since 2009-10. The assessee got registered on 28.11.2011 and paid Rs. 87,59,633/- out of the total service tax liability of Rs. 89,82,087/- for the period 2010-11 to 2011-12, without interest. The assessee admitted that at the time of introduction of service tax with effect from 1.7.2010, it was indeed providing taxable service but due to lack of knowledge, the registration could not be obtained within the prescribed time limit. The assessee admitted that the service tax for the period July, 2010 to June, 2012 was not paid on due dates and the interest for the delay was also not paid. As per the Service Tax Returns for this period, the assessee declared total taxable income of Rs. 34,88,18,870/- and the taxable value, after availing abatement of 75%, comes to Rs. 8,72,04,718/- and the service tax payable works out to R