2017 (4) TMI 589 - AT - Service Tax

Natural justice - Commissioner (Appeals) has failed to examine the certain facts of the case, which the appellant seeks to be reconsidered - Held that - the Commissioner (Appeals) has failed to examine the fact that the appellant constructed one unit residential housing which are not covered by the definition of residential complex - also, the fact that the construction of milk parlour is for State Govt. s Enterprise-Rajasthan Cooperative Dairy Federation, has not been examined by the impugned order - matter is remanded for decision afresh for examination of full facts afresh - appeal allowed by way of remand.

Summary

Issues:
1. Whether the construction of single unit houses is covered under the service of 'construction of residential complex' for service tax levy.
2. Whether the services provided are covered under Section 65(105)(zzza) or Section 65(91a) of the Finance Act, 1994.
3. Whether the decisions cited by the appellant support their argument.
4. Whether the impugned order failed to consider relevant facts regarding the construction of single unit residential housing.
5. Whether the construction of a milk parlour for a State Govt.'s Enterprise exempts liability to service tax.

Analysis:
Issue 1:
The appellant argued that the construction of single unit houses does not fall under the service of 'construction of residential complex' for service tax levy as it is meant for buildings with more than 12 residential units. The Tribunal found that the Commissioner failed to consider this fact, leading to the decision to set aside the impugned order for a fresh examination of the matter.

Issue 2:
The appellant contended that the services provided were not covered under Section 65(105)(zzza) or Section 65(91a) of the Finance Act, 1994. The Tribunal noted the appellant's argument and decided to remand the matter for a reexamination of all facts and documents, giving the appellant an opportunity for a personal hearing.

Issue 3:
The appellant cited various decisions to support their argument, including Macro Marvel Projects Ltd. v. CST, A.S. Sikarwar v. CCE, and a CESTAT decision in the case of M/s. Indrajeet Singh Jadourn v. CCE. The Tribunal acknowledged these citations and decided to set aside the impugned order for a fresh examination of the case.

Issue 4:
The Tribunal observed that the impugned order failed to consider crucial facts, such as the nature of construction of single unit residential housing and the construction of a milk parlour for a State Govt.'s Enterprise. As a result, the Tribunal set aside the order and remanded the matter for a reevaluation of all facts and a proper examination of the appellant's arguments.

Issue 5:
Regarding the construction of a milk parlour for a State Govt.'s Enterprise, the Tribunal noted that the impugned order did not examine the appellant's argument that the State Govt.'s Enterprise is not a commercial organization, potentially exempting the construction from service tax liability. Consequently, the matter was remanded for a fresh decision after considering all relevant facts and documents.