9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (7) TMI 10 - AT - Service TaxLevy of service tax - construction of complex service - demand for various periods. Demand for the period from November 2008 to 30.06.2012 - HELD THAT - It is an undisputed fact that the appellant being a builder / promoter / developer has provided complex services which are composite in nature. Further, for the period upto 1.7.2010 as per the Board s Circular No.108/02/2009-ST dt. 21.09.2009 has clarified the liability of a promoter / builder / developer prior to 1.7.2010. The Tribunal in the case of M/S KRISHNA HOMES VERSUS CCE, BHOPAL AND CCE, BHOPAL VERSUS M/S RAJ HOMES 2014 (3) TMI 694 - CESTAT AHMEDABAD after referring the Board circular and the Explanation added to Section 65 (105) (zzzh) w.e.f. 1.7.2010 has held that promoter / developer / builder is not liable to pay service tax prior to 1.7.2010. The appellant is not liable to pay service tax upto 1.7.2010. Demand for the period after 1.7.2010 upto 30.06.2012 - HELD THAT - The demand raised under construction of complex service 65 (105) (zzzh) cannot sustain for the reason that the contracts are composite in nature involving supply of goods as well as rendition of services. The decision rendered by the Tribunal 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 would squarely apply - The said decision was followed in the case of M/S. JAIN HOUSING CONSTRUCTION LIMITED VERSUS COMMISSIONER OF SERVICE TAX, CHENNAI 2023 (2) TMI 1044 - CESTAT CHENNAI which has been sustained by the Hon ble Apex Court by dismissing the appeal filed by the Department. The other decisions relied by the learned consultant also apply to the issue under consideration. For these reasons, the demand upto period 30.06.2012 cannot sustain and requires to be set aside. Demand for the period from 1.7.2012 to 31.3.2013 - HELD THAT - The appellant has put forward the argument with regard to quantification of the service tax for this period. Taking note of the fact that Rule 2A has undergone an amendment retrospectively w.e.f 2017, it is opined that this issue needs to be remanded to the adjudicating authority who is directed to quantify the service tax for the period from 1.7.2012 to 31.3.2013 by applying the amended provisions of Rule 2A. The confirmation of demand under MMRS is not contested by the appellant. Consequently, the demand, interest and penalties are sustained on this issue. Appeal allowed in part and part matter remanded.
Issues:
1. Demand of service tax for the period from November 2008 to 30.06.2012 under Construction of Complex Service (CCS). 2. Demand of service tax for the period from 1.7.2012 to 31.3.2013 under Section 65B (44) of the Finance Act, 1994. 3. Demand confirmed under Management, Maintenance and Repair Service (MMRS). Issue 1 - Demand of service tax for the period from November 2008 to 30.06.2012 under Construction of Complex Service (CCS): The appellant, engaged in construction services, faced a demand for service tax for the mentioned period. The Tribunal analyzed the nature of the services provided by the appellant and referred to relevant legal precedents. It was established that for the period up to 1.7.2010, the appellant was not liable to pay service tax. For the subsequent period, the demand under CCS could not be sustained due to the composite nature of the contracts involving both goods supply and service rendition. The Tribunal relied on various judgments, including Real Value Promoters Pvt. Ltd., Jain Housing & Construction Ltd., and others. Consequently, the demand for the period up to 30.06.2012 was set aside. Issue 2 - Demand of service tax for the period from 1.7.2012 to 31.3.2013 under Section 65B (44) of the Finance Act, 1994: The demand for this period was based on Section 65B (44) of the Finance Act, 1994. The appellant argued for reconsideration of the quantification of service tax due to a retrospective amendment in Rule 2A of Determination of Service Tax Valuation Rules in 2017. The Tribunal agreed that this issue required remand to the adjudicating authority for quantification based on the amended provisions of Rule 2A. The appellant's claim of not collecting tax from customers was noted, and the issue of penalty was left open for further consideration. Issue 3 - Demand confirmed under Management, Maintenance and Repair Service (MMRS): The demand under MMRS was not contested by the appellant. Therefore, the Tribunal upheld the demand, interest, and penalties related to this issue. In conclusion, the Tribunal modified the impugned order by setting aside the demand, interest, and penalties imposed for the period from November 2008 to 30.06.2012 entirely. The demand for service tax on construction services for the period from 1.7.2012 to 31.3.2013 was remanded to the adjudicating authority for quantification. The issue regarding MMRS was upheld. As a result, the appeal was partly allowed and partly remanded for further proceedings as per the detailed analysis provided for each issue.
|
