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TMI Blog2018 (7) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in the case of Magus Construction Pvt.Ltd. is clearly in the context of builders who construct flats and then effect sale of the same, as contrary to the sale of UDS alone in the case on hand - the case do not apply to the facts of present case. It is also equally relevant to refer to another decision/order of this very Bench, in the case of CCE .Vs. M/s. Lancy Tanjore Power Co. Ltd.[2018 (3) TMI 1010 - CESTAT CHENNAI], wherein, the court has concluded that since the definition provided under Section 65(91a) specifically excluded construction undertaken for personal use including permitting the complex use as residence by another person, that exclusion covered the construction activity of the assesse and thus the service tax liability would not sustain. There will be no service tax liability on the appellant - appeal allowed. - Appeal No. ST/384/2011 - Final Order No. 41938 / 2018 - Dated:- 2-7-2018 - Hon ble Shri V. Padmanabhan, Member (Technical) And Hon ble Shri P Dinesha, Member (Judicial) Shri PrasannaKrishanan V, Consultant for the Appellant K. Veerabhadra Reddy, JC (AR) for the Respondent ORDER Per Bench The appellant is a partnership firm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Pvt.Ltd.Vs. The Commissioner of Service Tax, Chennai, etc.. The adjudicating authority (hereinafter referred to as AA ) after going through the submissions, both written and on hearing the AR of the appellant, vide order-in-original dated 07.03.2011 has confirmed the demand, interest and penalty as proposed in his SCN. Seriously aggrieved by the same, the appellant is before this forum. Shri PrasannaKrishanan V., Consultant, appeared for the appellant and Shri K. Veerabhadra Reddy, JC (AR), appeared for the Revenue. 4. It was contended by the learned Consultant for the appellant that primarily, the act of the AA/Commissioner is against the CBEC Circular No. 332/35/2006 dated 01.08.2006. It was further contended by the Ld. Consultant during the course of hearing that when the appellant had commenced its construction activities, it had brought its activities to the notice of the Dept. as early as in June, 2008 vide replies(in O.C. No. 10/16/2018/2008 dated May, 2008) to the Superintendent of Service Tax about its only project namely Golden Ventures and therefore, no suppression could be attributed to the appellant; that its case was that since it had engaged the services of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s always an ultimate customer/client, which fact has not been discussed since the assessee, as a promoter, would not retain all the flats; it was not disputed by the appellant that it had entered into a construction agreement with its buyers and with the land owner and that it had agreed that certain units out of the constructed area would be allotted to its buyers/customers as per the construction agreement. To conclude, the learned DR emphasized the fact that the Board circulars would apply only if a complex constructed by a person directly engaging any other person, was intended for the personal use as residence by such person, which is not the case on hand here. He also stressed that the number of dwelling units in this case was 106 and, therefore, the case of the appellant was clearly covered under the construction of residential complex. 6. On the decision of Magus Construction (supra), the learned AR relied on the findings given by the AA at paragraph 6.6 of the impugned order to the effect that the Hon ble High Court was dealing with a situation of the sale and purchase of flats only and not on carrying out any construction activities on behalf of the prospective buyers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now discuss the decisions relied on by the Ld. Consultant. The issue involved in the case of Magus Construction Pvt.Ltd. (supra) is, according to us, clearly in the context of builders who construct flats and then effect sale of the same, as contrary to the sale of UDS alone in the case on hand. 11. With regard to the other decisions of the learned Counsel, namely, Jain Housing Vs. Commissioner of Service Tax, Chennai, 2014 (36) S.T.R. 1010 (Mad.), our understanding is that the Hon ble Madras High Court was only dealing with a stay matter and that too for the dispensation of pre-deposit. The Hon ble High Court has only discussed the Tribunal s directions on the pre-deposit, has modified the Tribunal s direction, which, according to us, does not lay any law, especially on the issue involved to extend the benefit of the same to the appellant. This is in fact very clear, form the conclusions drawn by the Hon ble court, which is as under : 26. For the foregoing reasons, we pass the following order : (i) On the questions of law raised, we are of the view that the Tribunal was not justified in ordering the pre-deposit in the manner stated in its order dated 29-7-2013; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction service provided to the builder/promoter/developer under construction of complex service; that if no person is engaged by the builder/promoter/developer for construction work, who undertakes construction work on his own without engaging the services of any other person than in such cases, in the absence of service provider and service-recipient relationship, the question of providing taxable service to any person by any other person would not arise, etc. The Hon ble Bench after analysing the scope of Section 65 (105) (zzzh), has held as under: ...Thus, by this explanation, the scope of the Clause (zzzh) of Section 65 (105) has been expanded and this amendment by adding an explanation has been held by this Tribunal in the case of CCE, Chandigarh v. U.B. Construction (P) Ltd. (supra) as prospective amendment. In this regard, para 5 of this judgement is reproduced below:- 5. In Maharashtra Chamber of Housing Industry v. Union of India -2012 (25) S.T.R. 305 (Bom.), the validity of the Explanation added to Sections 65 (105) (zzzh) was challenged on several grounds. The Bombay High Court also considered the issue whether the explanation was prospective or retr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 16.03.2018 wherein, the court has concluded that since the definition provided under S.65(91a) specifically excluded construction undertaken for personal use including permitting the complex use as residence by another person, that exclusion covered the construction activity of the assesse and thus the service tax liability would not sustain. 15. From a perusal of materials on record vis- -vis the pleadings as also the above judgments/orders of Tribunals, it appears to be clear that there is no service tax liability. According to the Ld. DR, it is matter of concern that the appellant by entering into agreement for selling only UDS is trying to escape tax liability, say, under State Registration Act or under other law for the time being in force. But with due respects, that is not a taxable event to be brought under service tax net. 16. The learned Consultant appearing for the assessee has mainly contended that by virtue of notifications and various case law the demand of service tax has to be set aside. As noted by us in the above paragraphs, the issue here is similar to the one decided by the Principal bench as also this very Bench. Thus going by the ratio decidendi, we h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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