2013 (2) TMI 560 - Commissioner - Service Tax

Construction of Complex service - Whether the construction of residential houses for Pondicherry university and quarters for the Police Department is taxable under Construction of Complex service Held that - The apartments/houses constructed for PU and the Police Department were not sold out but were used by them. It is the intention of the legislators to tax only the residential complex constructed and sold for consideration. That is the reason there is an exclusion clause. Hence, according to the exclusion clause, complex meant for personal use is not taxable. Therefore, the exclusion clause is rightly available for the appellant - Not taxable under Construction of Complex service In favour of assessee. Commercial or Industrial construction Service Vs. works contract Service - Whether the appellant s activity of constructing tower for BSNL is taxable under Commercial or Industrial construction Service or works contract Service Held that - appellant had paid service tax under works contract service for such construction to M/s. BSNL w.e.f. 1-6-2007. The Lower Adjudicating Authority had also accepted the amount paid by the appellant under works contract service for their services rendered to M/s. BSNL during the period from 1-6-2007 to 19-12-2009. As the Lower Adjudicating Authority had accepted the service tax paid by the appellant under the category Works Contract Service and appropriated the same, I hold that the demand raised by the Lower Adjudicating Authority for the same service rendered to M/s. BSNL w.e.f. Jan 2006 to 31-5-2007 under the category commercial or industrial construction service is not sustainable - In favour of assessee.

Summary

Issues:
1. Whether the appellant's construction activities are taxable under "Construction of Complex service"?
2. Whether the appellant's construction activities for BSNL are taxable under "Commercial or Industrial construction Service" or "Works Contract Service"?
3. Whether the Lower Adjudicating Authority's order exceeded the scope of the Show Cause Notice?

Issue 1: Construction of Complex Service Taxability
The appellant constructed residential houses for Pondicherry University and Police Department. The Department demanded Service tax under "Construction of Complex" Service. The appellant argued that since the constructions were not sold but used by the University and Police Department, they should not be taxed. The exclusion clause in Section 65(91 a) of the Finance Act, 1994 exempts complexes intended for personal use. The Commissioner held that as the constructions were not sold but used by the entities, they fall under the exclusion clause, thus not taxable under "Construction of Complex" service.

Issue 2: Taxability of Construction Activities for BSNL
The appellant constructed a tower foundation for BSNL. The Department demanded Service tax under "Commercial or Industrial construction" service. However, the appellant had paid service tax under "Works Contract" service from 1-6-2007 for the same construction. The Lower Adjudicating Authority accepted the tax paid under "Works Contract" service and appropriated it. The Commissioner ruled that the demand for the period before 1-6-2007 under "commercial or industrial construction" service was not sustainable as the appellant had already paid tax under "Works Contract" service.

Issue 3: Scope of Show Cause Notice
The appellant contended that the Lower Adjudicating Authority exceeded the scope of the Show Cause Notice by confirming the demand under a different category. However, records showed that the appellant voluntarily classified the construction under "Works Contract" service and paid tax accordingly. The Commissioner found that the Lower Adjudicating Authority did not exceed the scope of the notice as the appellant had already paid tax under the correct category.

In conclusion, the penalties imposed were set aside as the appellant had paid the surviving demand with interest before the show cause notice. The Commissioner ruled in favor of the appellant, holding that the constructions for Pondicherry University and Police Department were not taxable under "Construction of Complex service" and that the demand for the construction for BSNL under "commercial or industrial construction" service was not sustainable. The appeal was disposed of accordingly with consequential relief.