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TMI Blog2020 (3) TMI 635X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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. In this connection reliance can be placed on a Division Bench judgment of the Principal Bench of the Tribunal in MACRO MARVEL PROJECTS LTD. VERSUS COMMR. OF SERVICE TAX, CHENNAI [ 2008 (9) TMI 80 - CESTAT, 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. Thus, the levy of service tax on the appellant under construction of complex service is not justified and, cannot be sustained. GTA Services - HELD THAT:- 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Bhopal Development Authority Construction of Individual Duplex under Vedavati Avasiya Yojana, Amravat Khurd. 3. Three 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, the second show cause notice dated 30 December, 2013 was issued for the period 1 April, 2012 to 31 March, 2013 while the third show cause notice dated 22 April, 2015 was issued for the period 1 April, 2013 to 31 March, 2014. The details of the works has mentioned in the aforesaid show cause notices have been mentioned above. The show cause notices mention that the activity undertaken by the appellant appeared to be classifiable and taxable under the category of construction of complex services as defined under section 65 (30a) of the Finance Act, 19943. The show cause notices further mention that the appellant is also liable for payment of service tax as a recipient of GTA service. 4. The appellant submitted a detailed reply to the aforesaid show cause notice. 5. The Principal Commissioner has confirmed the demand of service tax under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untant for the appellant and the learned Authorised Representative of the Department have been considered. 9. The first dispute in the present appeal relates to the work undertaken by the appellant for the Bhopal Development Authority for construction of Inter State Bus Terminus platform. 10. It is pointed out by the learned Chartered Accountant for the appellant that demand has been confirmed under commercial or industrial construction under section 65 (25b) of the Finance Act which is made taxable under section 65 (105) (zzq) of the Finance Act. 11. Commercial or industrial construction has been defined under section 65 (25b) of the Finance Act as follows:- (25b) - Commercial or industrial construction means - (a) construction of a new building or a civil structure or a part thereof; or (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 structur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded from the definition of Commercial or Industrial Construction Service for service tax purposes. When the construction of ISBT is not a taxable service, there cannot be any bifurcation of that activity for service tax. We find no substance in the appeal by the Revenue on these grounds. 15. Thus, for the reasons stated in the aforesaid decision of the Tribunal, it is not possible to sustain the demand made for the construction of Inter State Bus Terminus platform. 16. The second dispute is with regard to the construction of individual duplex under Vedavati Avasiya Yojana, Amravat Khurd for the Bhopal Development Authority under construction of complex as defined under section 65 (30a) of the Finance Act. 17. Section 65 (30a) of the Finance Act deals with construction of complex and is defined as follows:- 65 (30a) - construction of complex means (a) Construction of a new residential complex or a part thereof; or (b) Completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 residential complex under section 65(91a) of the Act and observed as follows:- It is abundantly clear from the above provisions that construction of residential complex having not more than 12 residential units is not sought to be taxed under the Finance Act, 1994. For the levy, it should be a residential complex comprising more than 12 residential units. Admittedly, in the present case, the appellants constructed individual residential houses, each being a residential unit, which fact is also clear from the photographs shown to us. In any case, it appears, the law makers did not want construction of individual residential units to be subject to levy of service tax. Unfortunately, this aspect was ignored by the lower authorities and hence the demand of service tax. In this view of the matter, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 intended to be a binding precedent for the future. 4. We have considered arguments on both sides. We find that the definition of residential complex as per Section 65(91a) of Finance Act, 1994 is applicable for both the entries under Section 65(105)(zzzh) for levy of tax on construction of residential complex as also for entry under Section 65(105)(zzzza) for works contract. Therefore, there cannot be an argument that the expression residential complex has to be interpreted in one manner for works contract and in a different manner for levy of tax on construction of a residential complex. 5. We further note that Revenue being aggrieved by the decision of the Tribunal in the said matter had filed appeal with the Hon ble Supreme Court and the Hon ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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) and65 (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.) wherein it has been held 5. In view of above discussion, the judgments in the case of Macro Mavel Projects Ltd. v. CST, Chennai (supra) and A.S. Sikarwar v. CCE, Indore (supra) are not applicable to the facts of the present case because in those cases individual residential houses were constructed which did not satisfy the definition of residential complex reproduced above. Thus, we hold that impugned service clearly gets covered under construction of complex service liable to service tax. [Emphasis supplied]. 26. It is not possible to accept the reasoning given by the Principal Commissioner for the simple reason that in the present case also the appellant has not constructed a residential complex having more than 12 residential units. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the Principal Commissioner to substantiate that the payment made was for local cartage and not towards GTA Services. 31. Thus, for all the reasons stated above, the order to the extent it confirms the demand of service tax under commercial or industrial construction and construction of complex services are set aside. However, the matter relating to confirmation of demand of service tax under GTA services is remanded to the Principal Commissioner for a fresh determination in the light of the observations made above. 30. The appeal is, accordingly, allowed to the extent indicated above. [Order pronounced in the open Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
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