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2019 (2) TMI 871 - AT - Service TaxTaxability - Construction of Residential Complex Service - period from December 2009 to September 2010 - Held that - Larger Bench in the case of M/s. Bhayana Builders Pvt. Ltd. Vs. Commissioner 2013 (9) TMI 294 - CESTAT NEW DELHI (LB) to hold that free supplies are not to be included in the gross amount charged. It was also held in the said case that for this reason, the 67% abatement cannot be denied - appeal allowed - decided in favor of appellant.
Issues:
Demand of service tax under 'Construction of Residential Complex Service' for the period from December 2009 to September 2010. Analysis: The appellant, represented by Shri. M.N. Bharathi, argued that a previous Tribunal decision in their favor should apply, citing M/s/ Real Value Promoters Pvt. Ltd. & Ors. Vs. Commissioner of G.S.T. & Central Excise, Chennai & Ors. The respondent, represented by Shri. K. Veerabhadra Reddy, relied on case laws like M/s. G.D. Builders Vs. Union of India, M/s. BCC Developers and Promoters Pvt. Ltd. Vs. C.C.E., Jaipur, and M/s. National Building Construction Corpn. Ltd. Vs. C.C.E. & S.T., Raipur. The Tribunal examined the arguments presented by both sides. The respondent relied on the decision in M/s. G.D. Builders, which allowed service tax on composite contracts. However, the Tribunal noted that the decision was made before the apex court's ruling in Commissioner of C.Ex. & Cus. Vs. M/s. Larsen & Toubro Ltd., which held that composite contracts cannot be divided. The Tribunal also discussed the case of M/s. BCC Developers and Promoters Pvt. Ltd., where service tax was confirmed for composite contracts without considering the apex court's decision. Another case, M/s. National Building Construction Corporation Ltd., was cited by the respondent, but the Tribunal found that the decision was not applicable due to subsequent apex court rulings. Despite the respondent's arguments, the Tribunal found no reason to deviate from its previous decision in the appellant's favor. Therefore, the impugned order was set aside, and the appeal was allowed with consequential benefits as per the law. The operative part of the order was pronounced in open court.
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