9911796707
TMI Blog2013 (2) TMI 560X X X X Extracts X X X X X X X X Extracts X X X X ..... sion clause is rightly available for the appellant - Not taxable under “Construction of Complex” service – In favour of assessee. “Commercial or Industrial construction” Service Vs. “works contract” Service - Whether the appellant’s activity of constructing tower for BSNL is taxable under “Commercial or Industrial construction” Service or “works contract” Service – Held that:- appellant had paid service tax under “works contract” service for such construction to M/s. BSNL w.e.f. 1-6-2007. The Lower Adjudicating Authority had also accepted the amount paid by the appellant under works contract service for their services rendered to M/s. BSNL during the period from 1-6-2007 to 19-12-2009. As the Lower Adjudicating Authority had accepted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services without taking service tax registration and without payment of service tax a Show Cause Notice No. 55/2010-S.T., dated 12-8-2010 was issued by the Joint Commissioner of Central Excise, Puducherry demanding Service tax of Rs. 11,36,984/- falling under the categories of Commercial or Industrial Construction and Construction of Complex during the period from 16-6-2005 to 30-6-2009 under proviso to Section 73(1) of the Finance Act, 1994 and demanding appropriate interest on the above amount under Section 75 of the Finance Act, 1994. The notice also sought to impose a penalty under Section 77 of the Finance Act, 1994 in as much as they had failed to file ST-3 return and a penalty under Section 78 of the Finance Act, 1994 in as much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) that in the present case, the basic fact that the appellant had constructed residential quarters for the CPWD (Income Tax department, Police department and Pondicherry University) is not in dispute and the adjudicating authority had not given any independent findings in the impugned order as to the applicability of service tax for such Construction of Residential quarters for Government Employees, constructed as per contract given by PWD/CPWD and therefore the impugned order is erroneous on law, and inconsistent with the rationale of the decision taken by the Hon ble CESTAT in the case cited below :- (a) M/s. Khurana Engineering Ltd. v. CCE, Ahmedabad - 2011 (21) S.T.R. 115 (Tri.-Ahmd.) (b) M/s. Senthil Constructions, Sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the SCN cum demand notice was for demand only under construction of complex service and commercial or industrial construction service, whereas the Lower Authority has confirmed demand under works contract service also by which he has traveled beyond the scope of SCN cum demand notice which is not legally correct and in this regard he relied on the Commissioner (Appeals), Pune, decision in the case of M/s. M.S. Gokhale - 2009 (16) S.T.R. 772 (Commr. Appl). He has also filed written submission which was taken on record. 5. I have carefully gone through the case records and submissions made oral as well as written by the appellant. After disposing of the stay petition, let me take up the main appeal itself for decision. The issues to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson directly engaging any other person for designing or planning of the layout and the construction of such complex is intended for personal use as residence by such person In the instant case, there is no dispute that the apartments/houses were constructed for Pondicherry University and the Police Department. The apartments/houses constructed for PU and the Police Department were not sold out but were used by them. It is the intention of the legislators to tax only the residential complex constructed and sold for consideration. That is the reason there is an exclusion clause. Hence, according to the exclusion clause, complex meant for personal use is not taxable. Therefore, the exclusion clause is rightly available for the appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority for the same service rendered to M/s. BSNL w.e.f. Jan 2006 to 31-5-2007 under the category commercial or industrial construction service is not sustainable. 5.3 Whether the Lower Adjudicating Authority s impugned order has traversed beyond the scope of the Show Cause Notice as alleged by the appellant? The appellant had made a reference during personal hearing that the Lower Adjudicating Authority had traversed beyond the scope of the Show Cause Notice by confirming the demand raised originally under commercial or industrial construction service under the new category works contract service . I find from the records that the appellant had voluntarily classified his service rendered to M/s. BSNL in respect of construction ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
