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TMI Blog2015 (10) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... ined and enumerated in Section 65(105)(zzzz) , of the Act. These several contemporaneous exposition and administrative constructions and the scope of sub-clause (v) of Explanation I in Section 65(105)(zzzz) fortify the conclusion the scope of sub-clause (v). To modify and expand the scope of the taxable service to cover and include vacant land on lease or licence for construction of a building or a temporary construction at a later stage to be used for furtherance of business or commerce, within the ambit of 'immovable property' is thus the taxable service. Since the introduction of this sub-clause in Explanation I expands the scope of the taxable service and renders the taxable (a) hitherto non-taxable transaction, and absent of explicit retrospective reach provided to the amendment and insertion of this sub-clause, , these transactions covered by this sub-clause of the Explanation have only the prospective operation. Renting of vacant land by way of lease or licence (irrespective of the duration or tenure), for construction of a building or a temporary structure for use at a later stage in furtherance of business or commerce is a taxable service only from 1.7.2010, and not so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch building or part of a building; (iii) the common or shared areas and facilities relating thereto; and (iv) in case of a building located in a complex or an industrial estate, all common areas and facilities relating thereto, within such complex or estate, but does not include-- a) Vacant land solely used for agriculture, aquaculture, farming, forestry, animal husbandry, mining purposes; b) Vacant land whether or not having facilities clearly incidental to the use of such vacant land; c) Land used for educational, sports, circus, entertainment and parking purposes; and d) Land used solely for residential purposes and buildings used for the purposes of accommodation, including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities. However, w.e.f. 01.07.2010, clause (V) was added to the definition of immovable property and it now covers vacant land given on lease or license for construction of a building or temporary structure at a later stage, to be used for furtherance of business or commerce. A notification was issued by the Research Unit of Central Board of Excise Customs (Department of Revenue) dated 26.02.2010 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not imposed. The show cause notice was adjudicated upon by the Commissioner, Central Excise and Service Tax, Noida vide order-in-original dated 19.07.2012, the demand was confirmed along with interest thereon under Section-75. Penalty of equal amount was imposed on the assessee under Section-78 of the Finance Act, 1994. Another penalty of ₹ 200/- per day starting from the first day after the due date was imposed under Section-77(1)(c) upon the assessee, for failure to furnish the required information and to produce the documents. Against the above order of the Commissioner, Appeal No. ST/3256/12 was filed before the Tribunal by the assessee. A second show cause notice was issued to the assessee on the basis of the enquiry conducted by the Additional Director of General, DGCEI, New Delhi dated 17.10.2012, it was reported that the assessee for the period between 01.06.2007 to 31.03.2012 had received a sum of ₹ 14,60,25,26,232/- under various heads from their customers/allotees on which service tax was payable and had not been paid. The quantum of service tax was calculated as ₹ 1,40,74,64,342/- along with interest. A second show cause notice dated 17.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service only from 01.07.2010, whereas exclusion of vacant land as per (a) and (b) only signifies that renting of vacant land was already covered under definition and there was legislative intent to exclude certain category of vacant land and since there has been no change in exclusion after insertion of clause (v) only signifies that clause (v) was already part of main definition? Before adverting to the merits of this appeal it may be recorded that the appeal filed by the assessee before this Court, being Central Excise Appeal 54 of 2015, against the same order of the Tribunal dated 28.08.2014 has been dismissed by us under the judgment and order dated 30.03.2015 and the findings of the Tribunal under challenge in the said appeal, insofar as it was against the assessee, has since been affirmed. What has been argued before us by the counsel for the department is that the renting of vacant land was under the ambit of service tax w.e.f. 01st June, 2007 in view of Section 65(105)(zzzz) of the Finance Act, 1994 and for the purpose reference is made to the said section, which reads as follows:- Section 65(105): taxable service means any service provided or to be provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... building or structure on such land for furtherance of business or commerce during the tenure of the lease. The Board Circular No.334/2010-TRU, dated 26.2.2010 (in paragraph 3) explains the purpose of the amendments to Section 65(105)(zzzz). Accordingly, the Circular explains that amendments are being made in the definition of this taxable service to provide that renting of vacant land where there is an agreement or contract between the lessor and lessee for undertaking construction of buildings or structures on such land for furtherance of business or commerce during the tenure of the lease, shall be subjected to service tax. The statement of objects and reasons accompanying the Finance Bill, 2010 also clarify that clause 75 of the Bill seeks to amend Chapter V of the Finance Act, 1994; to modify the scope of certain taxable services including the taxable service defined and enumerated in Section 65(105)(zzzz) , of the Act. These several contemporaneous exposition and administrative constructions and the scope of sub-clause (v) of Explanation I in Section 65(105)(zzzz) fortify the conclusion the scope of sub-clause (v). To modify and expand the scope of the taxable service to cove ..... 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