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TMI Blog2015 (5) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... cant is that the applicant is not constructing the residential complex, but they have constructed individual residential units and they are not liable to pay the service tax as held by the Tribunal in the case of A.S . Sikarwar Vs. CCE , Indore-2012 (28) STR 479 (Tri-Del). 3. It is further submitted by the Ld. Counsel that in the case of Karni Construction Co. Vs CCE Vide stay order No.SO /ST/54866/2014-CU (DB) dated 16.12.2014 this Tribunal has granted unconditional waiver of pre deposit. Therefore, waiver of pre deposit be granted. 4. On the other hand Ld. AR strongly opposes the contention of the Ld. Counsel and submits that the Ld. Commissioner has examined the issue in detail and observed in para 27 as under: 27. Now the moot point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... swimming pools, acoustic applications or fittings and other similar services or (c) repair , alteration, renovation or restoration of, or similar services in relation to, 'residential complex'. Further the term 'residential complex' has been defined under Section 65( 91a ) of the Finance Act, 1994 as follows: ( 91a ) " residential complex" means any complex comprising of - (a) a building or buildings, having more than twelve residential units; (b) a common area, and (c) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system located within a premises and the layout of such premises is approved by an authority under any law for the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stallations for transport of fluids, heating, ventilation or, air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or (b) construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or (c) construction of a new residential complex or a part thereof; or (d) completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to (b) and (c); or (e) turnkey projects including engineering, procurement and construction or commissioning ( EPC ) projects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Complex Service' and 'Works Contract Service' w.e.f . 01.06.2007. I find that the description of activities under the both category of taxable services are identical, therefore the classification has to be revisited to see which classification provided the best fit to the subject service from amongst the categories of taxable services available at that given point of time. Thus taxability of the subject activities has to be determined with reference to services which were under the tax net at the relevant time i.e. prior to 1.6.2007 and after 1.6.2007. In the instant case from the nature of work carried out by the noticee it is evident and as already classified under the show cause notice that during the period 01.10.2006 to 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that date." 30. From the above it can be seen that the Finance Act, 1994 brought the levy of service tax on certain specified works contracts under the works contract service w.e.f. 01.06.2007. On going through the definition of work contract service given supra, it is observed that basically there are two main conditions which need to be satisfied for classification under the said service. On examination of the work orders and material facts available on record, it is found that all the work orders were with material and there was transfer of property in goods involved in the execution of said contract which was leviable to tax as sale of goods hence first condition of the definition satisfies. The other condition as stipulated in the def ..... X X X X Extracts X X X X X X X X Extracts X X X X
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