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TMI Blog2020 (3) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... 014. Interest and penalty have also been imposed upon the appellant. 2. The appellant, a partnership firm, is engaged in civil construction work for some of the Government Departments. During the period from 1 October, 2007 to 31 March, 2014, the appellant undertook the following works for the Departments:- Sl.No. Department Nature of Work 1. Public Works Department Construction of two nos. halls at Regional Sports Centre of Sports Authority of India 2. National Buildings Construction Corporation Limited Construction of MP Bhoj University 3. MP Housing Board, Division - 6 Construction of Duplex at Riviera Towne (Phase - I), Bhopal. 3. Two show cause notices were issued to the appellant. The first show cause notice dated 18 April, 2013 was issued for the period 1 October, 2007 to 31 March, 2012, while the second show cause notice dated 22 April, 2015 was issued for the period 1 April, 2013 to 31 March, 2014 The first show cause notice dated 18 April, 2013 mentions that Prakash Wadhwani was allotted a work by MP Housing and Infrastructure Development Board MP Development Board but he executed the said work order through his two partnership firms, namely, M/s. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l cartage and, therefore, consignment notes were not issued nor transportation service was received through agents. Thus, the appellant could not be held liable to pay service tax under the head of GTA; (iv) Even otherwise, the amount paid by the appellant for transportation was below the threshold limit specified in the Notification dated 3 December, 2004 and, therefore, no tax liability could be fastened upon the appellant; (v) The Principal Commissioner could not have levied penalty and interest upon the appellant; and (vi) The extended period of limitation could not have been invoked in the fact and circumstances of the present case. 9. The learned Authorized Representative of the Department has, however, supported the impugned order and has submitted that no interference is called for in this appeal. It is his submission that the appellant failed to produce any documents before the Principal Commissioner to substantiate the defence taken by the appellant in regard to GTA service and, therefore, it is not open to the appellant to now substantiate the submission by placing reliance upon documents which had not been filed before the Principal Commissioner in reply to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units. In other words a complex may have a building having more than twelve residential units or a complex may have more than one building each having more than twelve residential units. Independent buildings having twelve or less than twelve residential units would not be covered by the definition of "residential complex". In the present case, the appellant had constructed independent buildings having one residential unit only. Thus, even if the appellant had constructed more than 12 independent buildings, the nature of activity would not be "construction of complex" and, therefore, the service tax could be levied. 16. In this connection reliance can be placed on a Division Bench judgment of the Principal Bench of the Tribunal in Macro Marvel Projects Ltd. v/s Commissioner of Service Tax, Chennai 2008 (12) STR 603 (Tri.-Chennai) wherein the demand of Service Tax was for the period 16 June, 2005 to November, 2005 under "construction of complex" service under section 65(30a) of the Act. The Bench examined the scope of "construction of complex" and the meaning of 'resident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . They have built 15 independent houses and not a complex and hence their activity was not taxable under the entry 65(105)(zzzh) which adopts definition in Section 65(91a). He relied upon the decision of the Tribunal in the case of Macro Marvel Projects Ltd. v. CST, Chennai - 2008 (12) S.T.R. 603 (Tri.-Chennai). 2. The Authorised Representative appearing for the Revenue submits that the explanation under Section 65(91a) of Finance Act, 1994 gives definition of "residential unit" to mean "a house or single apartment intended for use as a place of residence". Even if the residential units are separate, it will be covered by the definition, according to him. 3. The A.R. further submits that the decision in the case of Macro Marvel Projects Ltd. was with reference to the entry for works contract under Sections 65(105)(zzzza) of Finance Act, 1994 whereas the present case is in respect of construction of residential complex under entry 65(105)(zzzb). He also points out that the Tribunal in para-2 of the order has observed as under :- "These observations of ours with reference to 'works contract' have been occasioned by certain specific grounds of this appeal and the same are not in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction of a "Residential Complex" since the condition given in para (i) is nto fulfilled. Again in this regard the Noticee relied on the decision of Macro Marvel reported in 2008 (12) S.T.R. 603 (Tri. - Chennai), further affirmed by the Honourable Apex Court in 2012 (25) S.T.R. J154 (S.C.) and A.S. Sikarwar reported in 2012 (28) S.T.R. 479 (Tri. - Del.). 35. Here it is important to note that the case laws quoted by the Noticees are not applicable in their case in as much as they have done construction of houses development work in complex having more than 12 residential units, common community hall, common parking area, and common part which clearly satisfy the definition of residential complex in Section 65 (91a) of Finance Act, 1994 and service of construction of complex defined in Sections 65 (30a) and 65 (105)(zzzh) ibid - Impugned service clearly covered under construction of complex service liable to service tax - sections 65(91a), 65(30a) and 65 (105)/(zzzh) of Finance Act, 1994." 36. This view is also supported by the decision of CESTAT, Delhi in the case of Madhukar Mittal versus Commissioner of Central Excise, Panchkula reported in 2015(40) S.T.R. 969 (Tri.- Del.) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were below the threshold limit specified in Notification No.34/2004-ST dated 03.12.2004. However, the Noticees have not submitted any documentary evidence in support of their contention. Further, it is also important to mention that in case where serviced tax is required to be paid by the recipient of the service under reverse charge mechanism the benefit of threshold limit is not available. Consequently the Noticees are also liable to pay service tax on GTA services. As such they are liable to pay service tax on GTA services." 25. The learned Chartered Accountant for the appellant has referred to receipts to substantiate that it was a case of local cartage and not a case of transportation by GTA. Though it is a fact that the appellant had not produced these receipts before the Principal Commissioner in response to the show cause notice but the meager amount paid by the appellant for this activity during this period persuades us to remand the matter to the Principal Commissioner for examining this aspect after providing an opportunity to the appellant to submit the relevant documents within six weeks from the date of order. The appellant may submit the necessary documents before t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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