2015 (7) TMI 672 - AT - Service Tax

Waiver of pre deposit - Construction of Complex Service Works contract service - Held that - Construction of individual residential houses is not covered by the service of Construction of Residential Complex. It was also held that after 01.06.2007 it cannot be covered under Works Contract Service also. However it was specifically mentioned that the observations regarding Works Contract Service need not be taken into account. In the case of Krishna Homes Vs. CCE, Bhopal 2014 (3) TMI 694 - CESTAT AHMEDABAD , the Tribunal has already taken a view that after 01.06.2007 also individual flats cannot be considered as service rendered under Works Contract Service . In any case the definition of service remained the same till 01.07.2010 and prior to that there was no levy of service tax on individual residential construction. Only when a residential complex was constructed as a service, levy was applicable. Therefore we find that the decision of this Tribunal in the case of Macro Marvel Projects 2008 (9) TMI 80 - CESTAT, CHENNAI upheld by the Hon ble Supreme Court prima facie is applicable to the facts of this case also. In view of the above, we consider that the amount deposited by the appellant is sufficient to hear the appeal and accordingly the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal. - Stay granted.

Summary

Issues:
Demand for service tax under Construction of Complex Service and Works Contract Service - sustainability of demand - applicability of previous tribunal decisions - waiver of pre-deposit and stay against recovery during appeal.

Analysis:
The Appellate Tribunal CESTAT Bangalore addressed the demand for service tax totaling &8377; 22,72,979 under Construction of Complex Service and &8377; 5,55,04,153 under Works Contract Service against the appellant for specific periods. The appellant contended that a substantial amount had been paid before the issuance of the show-cause notice. The appellant argued that the consideration received was solely for constructing duplex bungalows and villas, not falling under Residential Complex Service or Works Contract Service. The appellant relied on the decision in Macro Marvel Projects Ltd. Vs. CST, Chennai to support the claim that individual residential houses were not covered under Construction of Residential Complex service. Additionally, the appellant cited the case of Krishna Homes Vs. CCE, Bhopal, where it was held that individual flats post-01.06.2007 did not qualify as Works Contract Service. The tribunal noted that the definition of service remained consistent until 01.07.2010, with no service tax levy on individual residential construction before that date. The tribunal found merit in the appellant's arguments, referencing the decision in Macro Marvel Projects, which was upheld by the Supreme Court. Consequently, the tribunal determined that the amount deposited by the appellant was sufficient to proceed with the appeal, thereby waiving the pre-deposit requirement and granting a stay against recovery during the appeal process. The operative part of the order was pronounced on 26.06.2014.