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TMI Blog2013 (7) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be service provided or to be provided to another person, the transaction falls outside the purview of the taxable service. - as decided in Maharashtra Chamber of Housing Industry vs. UOI (2012 (1) TMI 98 - BOMBAY HIGH COURT)– demand set aside. - ST/611 of 2008 - FINAL ORDER NO.56249/2013 - Dated:- 30-4-2013 - G Raghuram And Sahab Singh, JJ. For the Appellant : Shri Swadeep Hora, Adv. For the Respondent : Shri M S Negi, AR. Per: G Raghuram: Heard the ld. Counsel for the appellant and the ld. Departmental Representative, Shri M.S. Negi for the respondent/Revenue. 2. This appeal by the assessee is preferred against the adjudication order dated 27.6.2008 passed by the Commissioner, Central Excise, Jaipur assessing serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (25b) defines 'commercial or industrial construction' as meaning - (a) construction of a new building or a civil structure or a part thereof; or (b) construction of pipeline or conduit and other similar services in relation to completion and civil construction (as the provision was at the relevant time). Section 65(105)(zzq) of the Act, which is relevant for the purpose, enumerates a taxable service as a meaning - any service provided or to be provided to any person, by any other person in relation to commercial or industrial construction service. 5. In the context of the facts and the relevant statutory provisions, the singular enquiry relevant is whether commercial or industrial construction service provided by the assessee, which is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r/buyer; and where the recipient of the service is not in the picture at all at any stage of construction. On this analysis, the adjudicating authority concluded that the assessee had rendered taxable service and was liable to service tax, interest and penalties as a consequence. 7. An explanation was appended to Section 65(105)(zzq) by Finance Act 2010 with effect from 1.7.2010. This explanation reads: Explanation: For the purposes of this sub-clause, the construction of a new building which is intended for sale, wholly or partly, by a builder or any person authorized by the builder before, during or after construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder or the pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 29.1.2009 (which clarified that where an agreement to sell is entered into by a buyer with the builder, the property belongs to the builder till completion of the transaction and any service provided towards construction would be in the nature of 'self-service'); to the Explanation to Section 65(105)(zzq) introduced by the Finance Act, 2010; and declared that as a consequence of the Explanation, the ambit of the expression 'taxable service' in relation to commercial or industrial construction service or, as the case may be, construction of a complex service [chargeable to tax under Section 65(105)(zzh) - where an identical expression was introduced (also by the Finance Act, 2010)], has undergone a material change, by bringing within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t accords with the primary analysis of the relevant provisions namely Section 65(105(zzq) read with Section 65(25b) and that is how the Board also understood the provisions vide the clarification dated 29.1.2009 (issued prior to introduction of the Explanation). 5. An analogous situation, relating to the taxable service of "construction of complex", in Section 65(105)(zzh) of the Act fell for consideration by this Tribunal in C.C.E., Chandigarh vs. Skynets, Builders , Developers, Colonizer reported in 2012 (27) STR 388. Expressing the same view as the latter judgment of the Bombay High Court, the Tribunal held that the Explanation to Section 65(105)(zzh) [which is in pari materia the Explanation to Section 65(105)(zzq] does not have a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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