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2018 (11) TMI 362 - AT - Service TaxClassification of services - Residential Complex Service - Construction of Residential Complexes or Works contract service? - period from March 2007 to March 2009 - N/N. 12/2003-ST dated 20.06.2003 - Held that - The issue is covered by the decision in the case of REAL VALUE PROMOTERS PVT. LTD., CEEBROS PROPERTY DEVELOPMENT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST & CENTRAL EXCISE, CHENNAI 2018 (9) TMI 1149 - CESTAT CHENNAI , where it was held that The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service. For the period after 1.6.2007, service tax liability under category of commercial or industrial construction service‟ under Section 65(105)(zzzh) ibid, Construction of Complex Service‟ under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services‟ simpliciter. Demand set aside - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Classification of service provided by the appellant. 2. Eligibility for exemption under Notification No. 12/2003-ST. 3. Applicability of service tax on composite works contracts prior to and after 1.6.2007. 4. Validity of the demand and penalties imposed. Issue-wise Detailed Analysis: 1. Classification of Service Provided by the Appellant: The primary issue revolves around whether the appellant's services should be classified under "Residential Complex Service" or "Works Contract Service." The Show Cause Notice (SCN) issued on 23.04.2010 proposed to classify the appellant's service under "Residential Complex Service" and demanded ?33,84,984/- along with interest for the period from March 2007 to March 2009. The adjudicating authority confirmed this classification and demand, which was upheld by the Commissioner of Central Excise (Appeals). However, the Tribunal referred to its previous decision in the case of M/s. Real Value Promoters Pvt. Ltd., which ruled that composite works contracts should not be classified under "Residential Complex Service" but under "Works Contract Service" as defined under Section 65(105)(zzzza) of the Finance Act, 1994. 2. Eligibility for Exemption under Notification No. 12/2003-ST: The lower appellate authority held that the appellant was not eligible for exemption under Notification No. 12/2003-ST dated 20.06.2003. However, the Tribunal did not delve into this issue separately, as it concluded that the services provided were composite works contracts, which are not liable to service tax under the classifications proposed by the SCN. 3. Applicability of Service Tax on Composite Works Contracts Prior to and After 1.6.2007: The Tribunal extensively discussed the applicability of service tax on composite works contracts. It cited the Hon’ble Supreme Court’s judgment in Larsen & Toubro, which established that composite works contracts involving both service and supply of goods are not liable to service tax prior to 1.6.2007. For the period after 1.6.2007, such contracts should be classified under "Works Contract Service" and not under "Commercial or Industrial Construction Service" or "Construction of Residential Complex Service." The Tribunal emphasized that only services simpliciter (pure service without material supply) could be classified under the aforementioned categories. 4. Validity of the Demand and Penalties Imposed: The Tribunal found that the SCN and the subsequent orders incorrectly classified the appellant's services, leading to an unsustainable demand and penalties. It referred to various decisions, including those in the cases of Swadeshi Construction Company, Skyway Infra Projects Pvt. Ltd., and URC Construction (P) Ltd., which supported the view that composite works contracts should not be taxed under the categories proposed by the SCN. Consequently, the Tribunal set aside the impugned order, allowing the appeal with consequential benefits. Conclusion: The Tribunal concluded that the services provided by the appellant were composite works contracts and should be classified under "Works Contract Service" as defined under Section 65(105)(zzzza) of the Finance Act, 1994. The demand and penalties imposed under the incorrect classification were set aside, and the appeal was allowed with consequential benefits. The Tribunal's decision was based on established legal precedents and careful consideration of the nature of the services provided.
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