2015 (5) TMI 598 - AT - Service Tax

Classification of service - whether the services provided by the noticee during the period from 1.10.2006 to 31.3.2011 fall under the category of Construction of Complex Services or any other service according to nature of work undertaken by them - Held that - Certificate issued by the Rajasthan Housing Board satisfies that the construction was of individual residential housing unit and the issue has been covered by the decision in the case of A.S . Sikarwar (2012 (11) TMI 1000 - CESTAT, NEW DELHI) and same has been considered by this Tribunal in the case of Kami Construction 2015 (5) TMI 570 - CESTAT NEW DELHI while considering the stay application. Therefore, following the precedent decision of this Tribunal in the case of Karni Construction (Supra) we waive the requirement of pre deposit of entire amount of service tax, interest and penalties and stay recovery thereof during the pendency of the appeal. - Stay granted.

Summary

Issues:
Service tax demand for construction of residential complex service. Contention regarding construction of individual residential units. Classification under 'Construction of Complex Service' or 'Works Contract Service'. Waiver of pre-deposit based on previous Tribunal decisions.

Analysis:
The judgment revolves around a service tax demand of Rs. 59,59,280/- confirmed against the applicant for their activity categorized as "Construction of Residential Complex" service. The main contention raised by the applicant is that they have constructed individual residential units, not a residential complex, citing a previous Tribunal case. The argument is supported by the definition of 'Construction of Complex Service' under the Finance Act, 1994.

The Ld. Commissioner examined the nature of work undertaken by the applicant, focusing on various contracts and work orders executed during the relevant period. The Commissioner differentiated between 'Construction of Complex Service' and 'Works Contract Service', emphasizing the conditions for classification under each category. The Commissioner analyzed the work orders submitted by the applicant, highlighting the types of works undertaken, including construction of houses, drains, wells, etc., for the Rajasthan Housing Board.

Upon detailed scrutiny, the Ld. Commissioner concluded that the services provided by the applicant relate to the construction of LIG, MIG, and HIG houses/residential complexes for the Rajasthan Housing Board, falling under the definition of residential complex services. The Commissioner directed the applicant to make a pre-deposit based on this assessment.

In response to the arguments presented, the Tribunal referred to previous decisions, including the case of A.S. Sikarwar and Karni Construction, to determine the waiver of pre-deposit. Relying on the precedent set by the Tribunal in the case of Karni Construction, the Tribunal granted a waiver of the pre-deposit requirement for the entire amount of service tax, interest, and penalties during the appeal's pendency.

In conclusion, the judgment delves into the classification of services provided by the applicant, analyzing the definitions of 'Construction of Complex Service' and 'Works Contract Service' to determine the taxability of the activities undertaken. The decision to waive the pre-deposit requirement was based on previous Tribunal rulings and the nature of the construction activities carried out by the applicant.