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TMI Blog2015 (2) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority that the services rendered by the appellant would fall under Section 65(105)(zzzh) of the Finance Act, 1994. Notification No.29 of 2007 dated 22nd May, 2007 relates to taxable service falling under Section 65(105)(zzzza) of the Finance Act, 1994. Even otherwise, the language of Section 65(105)(zzzh) and the nature of the services provided by the appellant is construction of flat to the land owner and the transfer of land is only for the purpose of providing such taxable service, we fail to understand as to how the appellant would say that there is no liability to pay service tax in respect of 24 flats handed over to the land owner after rendering taxable service as defined under Section 65(105)(zzzh) of the Finance, 1994. If there is no monetary consideration in the transaction, then Section 65 of the Finance Act, 1994 provides for various methods for valuation. Hence, it is for the appellant to establish that his plea that the value of the land should be taken into consideration is a matter for the Tribunal to decide on merits at the time of hearing of the appeal. - Tribunal is justified in ordering pre-deposit of ₹ 12.00 lakhs as against the dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g service tax of ₹ 27,19,581/- in terms of proviso to Section 73(1) of the Finance Act, 1994; interest in terms of Section 75 of the Finance Act, 1994 and penalty under Sections 76 and 78 of the Finance Act, 1994. 3. In response to the show cause notice issued, the appellant filed a reply stating that since they did not pay any amount to the land owner towards the land cost, they had not paid service tax for the flats held by the land owner. The appellant further submitted that they had paid the service tax in respect of the flats sold to third parties and they had not suppressed the land owner's share. Hence, they requested to drop the proceedings. 4. After analysing the reply filed by the appellant and after affording personal hearing to the appellant, the Adjudicating Authority adjudicated the case and came to hold that that the classification of the service provided by them was not in dispute. In so holding the Adjudicating Authority further held as follows: I observe that it is the 'SPP'who provided the service of construction of flats by virtue of entering into a 'JVA'. As per Section 65(105)(zzzh) of the Act, taxable service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 1994 for the reasons mentioned in para 7.3(a) above; 6. Aggrieved by the said order of the Adjudicating Authority, the appellant preferred an appeal before the Commissioner (Appeals), who upheld the order of the Adjudicating Authority, thereby dismissed the appeal filed by the appellant. 7. As against the said order of the Commissioner (Appeals), the appellant preferred further appeal before the Tribunal along with an application for waiver of pre-deposit. 8. The contention of appellant before the Tribunal was that the appellant had not received any consideration in the form of money in respect of 24 flats handed over to the land owner and therefore tax should be demanded on the basis of the cost of land. 9. Before the Tribunal, the plea of the Department was that the value of taxable service should be equivalent to the gross amount charged by the appellant to provide construction of the similar 48 flats. For better clarity, the contention of the Department before the Tribunal is extracted hereunder: 3. On the other hand, the Ld. AR on behalf of the Revenue reiterates the findings of the Commissioner (Appeals). He drew the attention of the Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had rendered the service as service provider or developer of the project. Hence, the services rendered by the appellant fall under the category of Construction of Residential Complex Service , defined under Section 65(105)(zzzh) of the Finance Act, 1994. 14. Heard learned counsel appearing for the appellant and learned standing counsel appearing for the Department and perused the materials placed before this Court. 15. Before going into the merits of the case, it is necessary to look into the provision to decide the issue raised in this appeal. 16. Section 65 (105) (zzzh) of Finance Act, 1994 defines taxable service , which reads as follows: 65 (105) taxable service means any service provided or to be provided - (a)....... (zzzh) to any person, by any other person, in relation to construction of complex 17. Learned counsel appearing for the appellant submitted that Section 65(105)(zzzza) of the Finance Act will apply to the case and not 65(105)(zzzh) of the Finance Act, 1994. Section 65(105)(zzzza) of the Finance Act, 1994 reads as follows: 65 (105) taxable service means any service provided or to be provided - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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