2013 (12) TMI 906 - AT - Service Tax

Demand of service tax - Construction of Residential Complexes - Works Contract Service - Held that - definition of Residential Complex at Section 65(91a) will apply both for levy under Construction of Residential Complex as well as under Works Contract Service because this expression is used in Section 65(105)(zzzh) and 65(105)(zzzza). The clarification issued by C.B.E.& C. is prima facie applicable to the situation at hand. Therefore we grant waiver of pre-deposit of dues for the admission of appeal and there shall be stay on its recovery during the pendency of the appeal - Stay granted.

Summary

Issues:
Confirmed demand under "Construction of Residential Complexes" and "Works Contract Service", request for waiver of pre-deposit of dues for hearing of appeal.

Analysis:
The appeal involved a confirmed demand of Rs. 6,63,03,048/- against the appellant for the period 16-6-2005 to 31-5-2010, along with interest and penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The demand was confirmed under two classifications: "Construction of Residential Complexes" until 1-6-2007, and "Works Contract Service" thereafter. The appellant filed a stay petition seeking to hear the appeal without pre-deposit of dues from the impugned order.

The appellant's counsel argued that the demand pertained to construction activities for defense establishments, where various facilities were constructed. It was emphasized that all work was done for defense establishments, and there should be no demand for facilities other than residential accommodation, as they were not for business or commerce. The lower authorities, however, confirmed the demand for such facilities under the category of "Construction of Residential Complexes."

Regarding "Residential Complexes," the counsel contended that the definition excludes facilities constructed by engaging another person for the use of the person getting the building constructed. As the facilities were constructed for the Government of India, and the appellants were engaged as contractors, their activity would not fall within the definition. Reference was made to a clarification by the Tax Research Unit, supporting the non-liability to service tax in such situations.

The Commissioner (AR) opposed the prayer for waiver, citing the findings in the adjudication order. It was argued that the case of the Revenue was stronger after the introduction of a specific entry where the question of "own use" was not mentioned.

After considering both arguments, the Tribunal found that the definition of "Residential Complex" applied to both "Construction of Residential Complexes" and "Works Contract Service." The clarification issued by the Central Board of Excise and Customs was considered applicable to the situation. Consequently, the Tribunal granted a waiver of pre-deposit of dues for the admission of the appeal, with a stay on the recovery during the appeal's pendency.