P.G. Chacko, Judicial Member - These applications filed by the appellants seek waiver of pre-deposit and stay of recovery in respect of the adjudged dues. The impugned order was passed in adjudication of a show-cause notice which was issued to the erstwhile partnership firm, M/s Gauri Ganesha Real Estate and its successor-firm, M/s Maha Gauri Ganesha Builders and Developers. There were three partners in the firm M/s Gauri Ganesha Real Estate and, upon its reconstitution, the new firm M/s Maha Gauri Ganesha Builders and Developers came into existence with effect from 1.4.2007 with two of the above partners continuing (the instrument signifying this change of constitution of partnership firm was titled "Deed of Dissolution of Partnership"). Prior to and after 1.4.2007, the business of the partnership firm was in relation to real estate. The transaction which ultimately led to the present demand of service tax for the period from January 2005 to March 2007 was like this:

M/s Gauri Ganesha Real Estate executed agreements with prospective sellers of property and got these agreements registered also. Subsequently, Gauri Ganesha Real Estate obtained General Power of Attorney (GPA) from the prospective sellers and these GPAs were also got registered. On the strength of these GPAs, Gauri Ganesha Real Estate sold the properties of the aforesaid sellers to M/s Sahara India Commercial Corporation. The documents covering the said transactions were registered as "sale deeds" which showed Gauri Ganesha Real Estate as confirming party as well as GPA holder of the property owners. Gauri Ganesha Real Estate received the sale consideration as GPA holders of the property sellers. The amount so received as sale consideration in each transaction was higher than the amount shown in the corresponding purchase agreement, and the difference was retained by Gauri Ganesha Real Estate. The impugned demand is on the total sum of these differential amounts and the same is under the head "Real Estate Agency Service". The total demand of service tax and education cess is over Rs. 1.24 crores for the aforesaid period (January 2005 to March 2007) and this demand is accompanied by penalties imposed under Sections 76 & 77 of the Finance Act, 1994.

2. The learned counsel for the appellants submits that their activity was misclassified by the adjudicating authority and that it was nothing but a trading activity inasmuch as the appellants were purchasing and selling immovable properties. It is further submitted that the entire demand is beyond the normal period of limitation and that the extended period of limitation was invoked without any factual or legal basis. It is further pointed out that the learned Commissioner who adjudicated the show-cause notice refrained from imposing any penalty under Section 78 of the Act on valid grounds and that, on the very same grounds, it should have been held that the extended period of limitation was not invocable. In this connection, the learned counsel refers to stay order No. 1280/2011 dated 22.11.2011 passed by this Bench in appeal No. ST /2045/2011 wherein a prima face case was found for the appellant on the limitation issue. Finally, the learned counsel submits that his clients have financial difficulties and may not be able to make deposit except to the extent of 10% of the service tax amount.

3. The learned Commissioner (AR) opposes the present application, by relying on the findings recorded in the impugned order.

4. We have given careful consideration to the submissions. The modus operandi of the appellants, which we have briefly stated herein before, is crystal clear. They were not purchasing and selling immovable properties. They were only holding 'General Power of Attorney' of the property owners and, in that capacity, selling the property to M/s Sahara India . The 'sale consideration' was given to the sellers and the difference between that amount and the higher amount mentioned in the relevant purchase' agreement