2015 (6) TMI 825 - AT - Service Tax

Waiver of pre deposit - Construction of Complex Services - Circular 108/2/2009-ST dated 29.01.2009 - Held that - construction and sale of individual residential flat with undivided share of land at a time or under separate agreements for equitable share of land or for construction of flat would not be covered by the service of Construction of Residential Complex prior to 01.07.2010. Moreover the Board Circulars issued during the relevant time as submitted by the appellants are also in favour of the appellants. Besides the above we also take note of the fact that appellant has paid an amount of ₹ 47,73,858/- before issue of show-cause notice and if the calculation adopted by the appellant is accepted according to the appellant entire amount has been paid. In view of the fact that appellants appear to have a prima facie case in their favour and also in view of the decisions of this Tribunal considered by us above, we consider that appellant has made a prima facie case for complete waiver. Accordingly the requirement of pre-deposit is waived and stay against recovery is granted. - Stay granted.

Issues:
1. Benefit of Personal Use as clarified by Circular 108
2. Composition Scheme
3. Deduction on account of materials (Rule 2A)
4. Extended period of limitation

Analysis:

1. Benefit of Personal Use as clarified by Circular 108:
The issue revolved around the applicability of the benefit of exclusion based on personal use as per Circular 108. The appellants argued that the transaction should be excluded based on a holistic reading of the Circular. However, the Order-in-Original (OIO) contended that exclusion for individual residential units within a complex was not available. The judgment distinguished previous cases like LCS City Makers and emphasized that the allotment of flats in this scenario was different. The judge highlighted the relevance of specific paragraphs in the judgment to support the decision.

2. Composition Scheme:
The dispute regarding the Composition Scheme focused on the commencement date of the venture and the applicability of the scheme. The appellants claimed that each contract constituted an independent works contract, leading to a conflict in the Order's position. The OIO emphasized that since service tax was discharged before a specific date, the benefit of the Composition Scheme could not be extended. The discrepancy in the taxation of units within the complex was also noted.

3. Deduction on account of materials (Rule 2A):
The issue of deduction concerning materials consumed was raised, with the appellants providing a detailed CA certificate to support their claim. The OIO criticized the lack of supporting documentary evidence for material consumption and questioned the specificity of the consumption related to the impugned project. The appellants argued against the absolute denial of material deduction, citing the production of relevant documents.

4. Extended period of limitation:
The extended period of limitation was contested based on the alleged misinterpretation of Circulars and the intention to evade service tax payment. The appellants presented various clarifications and decisions to counter the invocation of the extended period. They highlighted voluntary tax payments before the Circular and extensive correspondence post the Circular as evidence against the misinterpretation claim.

In the final decision, the Tribunal acknowledged the appellants' arguments, referencing relevant case laws and Board Circulars in their favor. The Tribunal noted the prima facie case in favor of the appellants, especially considering the amount already paid before the show-cause notice. Consequently, the requirement of pre-deposit was waived, and a stay against recovery was granted, indicating a favorable outcome for the appellants based on the presented arguments and legal precedents.

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