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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 ..... plex having more than 12 residential units. It has constructed independent buildings having one residential unit - The decisions of the Tribunal in MACRO MARVEL PROJECTS LTD. VERSUS COMMR. OF SERVICE TAX, CHENNAI [ 2008 (9) TMI 80 - CESTAT, CHENNAI] and AS SIKARWAR VERSUS COMMISSIONER OF CENTRAL EXCISE, INDORE [ 2012 (11) TMI 1000 - CESTAT, NEW DELHI] clearly apply to the facts of the present case, where it was held that service tax can be demanded under section 65(105)(zzzh) only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where in one compound has many buildings, each having not more than 12 residential units. The definition of construction of complex and a residential complex continue to remain the same after 1 July, 2012 and, therefore, service tax liability could not have been fastened even after 1 July, 2012 under construction of complex - The levy of service tax on the appellant under construction of complex service is, therefore, not justified and, cannot be sustained. GTA services - HELD THAT:- It is seen that an amount of ₹ 1,12,847/- was confirmed for the period 1 October, 2007 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 allotte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oard and, therefore, the demand of service tax from the appellant, a contractor, would result in double taxation; (ii) A residential complex means a complex comprising a building or buildings, having more than 12 residential units and since the appellant had constructed buildings that did not have more than 12 residential units, no service tax liability could be fastened upon the appellant; (iii) The transportation of goods by the appellant was in the nature of local 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... layout, and the construction of such complex is intended for personal use as residence by such person. Explanation: For the removal of doubts, it is hereby declared that for the purposes of this clause.- (a) personal use includes permitting the 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 residence; 15. The definition of a residential complex leaves no manner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant portion of the order is quoted below:- In this case, the Appellants have undertaken construction work of 15 residential houses under a contract with M.P. Housing Board. The Revenue was of the view that the Appellants should have paid service tax on the activity under the entry 65(105)(zzzh) for taxing construction of complex as defined under Section 65(91a) of Finance Act, 1994. The submission of the appellant is that the entry covers only such building where each of the building has got more than 12 residential units. 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of Duplex Houses at Riviera Towne and Amrawat Khurd. In this regard the contention of the Noticee is that the work done under these contracts is constructions of independent houses. Service tax on the same cannot be demanded and collected as per the definition of Residential Complex defined under Section 65 (91a). The work doen by them is that of construction of buildings that do not have more than 12 residential units. Each building constructed by them contains only 1 residential unit. Under such circumstances, this construction is not construction 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellant had not submitted any documentary evidence in support of the contention that transportation of goods was through local cartage and no consignment notes were issued. The relevant finding of the Principal Commissioner is reproduced below:- 41. Thus, in respect of service tax payable by the Noticees under reverse charge Mechanism on Goods Transport Agency service, the contention of the Noticees is that in their case the transportation of goods was in the nature of local cartage and no consignment notes were issued and the amounts paid for the transportation 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 receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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