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TMI Blog2018 (6) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. Above stated two appeals are arising out of common impugned Order-in-Original No. 21/2017-ST dated 29.05.2017 passed by Additional Director General (Adjudication) of DGCEI, New Delhi. Since both the appeals are arising out of common order, they are taken together for decision. 3. Brief facts of the case are that the appellants were engaged in the construction of flats, commercial spaces and sale thereof. The appellants are registered with Service Tax Department. The appellants completed two residential projects namely "Orange County" & "Olive County". The project 'Orange County' started in the year 2006 and was completed by March, 2010, whereas project 'Olive County' was started in the year 2007 and was completed during October, 2011. With effect from 01.07.2010 the services of construction of flats and commercials became taxable. The appellant procured completion certificate from Certified Architect, Shri Vishal Sharma in respect of 'Orange County' project in June, 2010 and in respect of „Olive County‟ project in October, 2011. A search was conducted by the officers of DGCEI at the business premises of appellant on 14.10.2015 and also on 15.10.2015 at their offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 lakhs on Shri Jai Kishor, Director under Section 78 A of the Finance Act, 1994. Aggrieved by the said order both the appellants are before this Tribunal. 4. Heard the learned counsel for the appellants. He has submitted that the Original Authority has already held that there was no dispute that completion certificated was issued by Shri Vishal Sharma, Architect on 28.06.2010 in respect of „Orange County‟ project and on 25.10.2011 in respect of „Olive County‟ project. He has further submitted that there is no dispute as per the show cause notice that the demand was in respect of flats sold after obtaining the completion certificate. He has further submitted that the finding of the Original Authority that construction of complex was not complete before issue of completion certificate, is not sustainable, because law has not authorized Adjudicating Authority to decide when the completion of construction took place. The provisions of the law are very clear that once the completion certificate is issued by the Competent person, as authorized by laws, then any consideration received subsequent to the same is not subjected to provisions of service tax. He has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complex for use as residence by another person on rent or without consideration; (b) "residential unit" means a single house or a single apartment intended for use as a place of residentce; iv. Section 65(25b) of the Finance Act, 1944 defined „commercial or industrial construction‟ as under: a) Construction of a new building or a civil structure or a part thereof. b) Construction of pipeline or conduit; or c) Completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or d) Repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit, which is - (i) Used, or to be used, primarily for; or (ii) Occupied, or to be primarily with; or (iii) Engaged, or to be engaged, primarily in, commerce or industry, or work intended for commerce of industry, but does not include such services provided in respect of roads, airpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plex but does not include services covered under sub-clause (zzg), (zzq), (zzzh) and in relation to parking place". Explanation, - For the purpose of this sub-clause, "preferential location" means any location having extra advantage which attracts extra payment over and above the basic sale price;" x. Notification No. 01/2006 was amended by Notification No. 29/2010-ST dated 22.06.2010 and S. No. 10(a) was inserted into it. It exempted taxable service as specified under Section 65(105)(zzzh) from so much of service tax calculated on a value which is equivalent to 25% of the gross amount charged by such service provider for providing the said taxable service. The condition was that this exemption shall not apply in cases where the cost of land has been separately recovered from the buyer by the builder or his representative. Therefore w.e.f. 01.07.2010 service tax on construction or complex service was payable on 25% value only. B. For the period after 30.06.2012: i. With effect from 01.07.2012 scheme of taxation has changed from positive list to negative list. All services have become taxable except those which are listed under negative list or are exempted under a notificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on value which is equivalent to 25% of the gross amount charged by such service provider for providing the said taxable service, subject to the condition that Cenvat credit on „inputs‟ used for providing the taxable service has not been taken under the provisions of the Cenvat Credit Rules, 2004 and the value of land is included in the amount charged from the service receiver. 5. He has further submitted that Service Tax (Removal of Difficulty) Order, 2010, specifying Competent Authority to issue completion certificate under Commercial or Industrial Construction service and construction of residential complex was issued through Ministry of Finance, Department of Revenue Order No. 1/2010 dated 22.06.2010 wherein it was ordered as follows:- In exercise of the powers conferred by sub-section (1) of section 95 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to s the Finance Act), the Central Government, hereby makes the following Order, namely:- 1. (1) This Order may be called as the Service Tax (Removal of Difficulty) Order, 2010. (2) This Order shall come into force on the 1st day of July, 2010. 2. For the purposes of sub-clause (zzq) and (zz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied that a completion certificate issued by an Architect was proper certificate issued by Competent Authority and such certificate was in terms of above stated provisions of law and as per the above stated provisions if consideration is received after issue of such „completion certificate‟ service tax was not leviable on such activities. 8. Heard the learned AR who has supported the impugned Order-in-Original. 9. Having consider the rival contentions and on perusal of record and particularly the perusal of the provisions of law as submitted by the learned counsel for the appellant which are summarized above, we find that the above stated provisions do not authorize Adjudicating Authorities to decide whether the completion certificate was properly issued or not. The provisions of law are that if the transaction has taken place in respect of sale of flat or any other property after issue of completion certificate then it is to be treated as sale of immovable property and there is no element of service tax involved in the same. The service tax is involved only when the consideration is received before the issue of completion certificate. Admittedly in the present case e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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