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TMI Blog2010 (6) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... d and paid less service tax - SCN issued - penalty imposed - Held that: - service provided by seller in connection with the construction of residential complex till the execution of such sale deed would be in the nature of 'self-service' and consequently would not attract service tax - taxable service till the execution of sale deeds would be in the nature of 'self service' and consequently would not attract service tax - Waiver of pre-deposit - Allowed - ST/1039/2009 - 464/2010 - Dated:- 22-6-2010 - S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) REPRESENTED BY : Shri AKJ Nambiar, Advocate, for the Appellant. Shri M. Vivekanadan, SDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re period i.e. from 1-1-2007 to 31-3-2008, a Show Cause Notice was issued to the appellant. The appellant contested the show cause notice on various grounds. The adjudicating authority after considering the submissions made by the appellant in the reply to the show cause notice and after granting an opportunity of personal hearing, came to the conclusion that the appellant was engaged into providing services of 'Construction of Residential Complex' during the entire period and also rejected the contentions of the appellant that from 1-6-2006, they are liable to pay service tax under the category of Works Contract Services', confirmed the demands and interest and consequent penalties were also imposed. 3. Ld. Counsel moving a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity of construction of flats would be 'construction of residential complex services' which had been provided. He submits that the ownership of the property passes the moment agreement for sale of the undivided share of the property take place. He submits that the decision of this Bench in the case of Rohan Builders Ltd. v. Commissioner of Service Tax, Bangalore [2009 (13) S.T.R. 56 (Tri.-Bang.)] would cover the issue in favour of the Revenue. He further relies on the decision of this Bench in the case of Mohtisham Complexes Pvt. Ltd. v. Commissioner of Central Excise, Mangalore in stay order No. 1102/2008 dated 7-11-2008 [2009 (15) S.T.R. 160 (Tribunal)], in application No. ST/Stay/3/2008 wherein this Bench has directed the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services' and that also with effect from 1-6-2007. On perusal of paragraph 15 of the findings of the adjudicating authority, we find that the adjudicating authority has rejected this contention of the appellant by recording the following findings :- 15..... The CBEC vide Circular No. 98/1/2008-ST dated 4-1-2008 has clarified that vivisecting a single composite service and classifying the same under two different taxable services depending upon the time of receipt of consideration is not legally sustainable. In view of the above, a service provider who paid service tax prior to 1-6-2007 for construction of complex service, is not entitled to change the classification of the single composite service for the purpose of payment of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 29-1-2009 reads at paragraph 3 as under :- 3. The matter has been examined by the Board. Generally, the initial agreement between the promoters/builders/developers and the ultimate owner is in the nature of 'agreement to sell'. Such a case, as per the provisions of the Transfer of Property Act, does not by itself create any interest in or charge on such property. The property remains under the ownership of the seller (in the instant case, the promoters/builders/developers). It is only after the completion of the construction and full payment of the agreed sum that a sale deed is executed and only then the ownership of the property gets transferred to the ultimate owner. Therefore, any service provided by such seller in conn ..... X X X X Extracts X X X X X X X X Extracts X X X X
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