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TMI Blog2014 (11) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to 01/07/2010, it could not have been taxed and since the nature of transaction does not make the difference of the outcome, the decision in the case of Krishna Homes [2014 (3) TMI 694 - CESTAT AHMEDABAD] would apply since it examines the issue in great detail and has considered all aspects. Unfortunately the decision in the case of LCS City Makers [2012 (6) TMI 363 - CESTAT, CHENNAI] was not brought to the notice of the Bench. In our opinion, what is required to be seen is what exactly is the agreement for. If the agreement is not for the whole complex, for the period prior to 01/07/2010, prima facie, there cannot be any demand. In view of the above discussion, we consider that the appellant has made out a prima facie case for waive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he definition and the explanation read as under:- Section 65(105)(zzzh) taxable service means any service provided or to be provided to any person, by any other person, in relation to construction of complex. Explanation.-For the purposes of this sub-clause, construction of a complex which is intended for sale, wholly or partly, by a builder or any person authorised 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 a person authorised by the builder before the grant of completion certificate by the authority competent to issue such certificate under any law for the time being in force) shall be deemed to be service provided b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute, there was no intention of the Government to tax the activity in terms of such contracts a builder/developer with prospective customers for construction of residential units in a residential complex. Such works contracts involving transfer of immovable property were brought within the purview of taxable service by adding explanation to Section 65 (105) ( ZZZh ) w.e.f . 01/7/10, and therefore, it has to be held that such contracts were not covered by Section 65 (105) ( ZZZh ) during the period prior to 01/7/2010. We find that this decision is applicable to the facts of this case. 3. Further learned counsel also relies upon the decision in the case of CCE, Kanpur Vs. Vee Aar Developers Pvt. Ltd. [2013(30) STR 564 (Tri. Del.)] whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complex. This became exigible only after the insertion of explanation. As regards the second differentiation, we do not find any relevance. Whether it is an agreement to sell or whether there is absolute sale deed, it does not make a difference. What is required to be considered is the nature of service rendered. In the case of Krishna Homes, what was under consideration was an agreement to sell an apartment or finished work of a partly constructed apartment and in the case of LCS City Makers, there was a sale deed for undivided share of land and thereafter construction agreement followed. In both the cases, what was entered into was a construction agreement and in the case of Krishna Homes, it was a construction of apartment after found ..... X X X X Extracts X X X X X X X X Extracts X X X X
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