9911796707
TMI Blog2021 (8) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... argeable to service tax. This issue has been examined in detail by this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH VERSUS SKYNET BUILDERS, DEVELOPERS, COLONIZER OTHERS [ 2012 (4) TMI 427 - CESTAT, NEW DELHI] wherein this Tribunal clarified. Further, the same view was taken by this Tribunal in the case of M/ BAIRATHI DEVELOPERS PVT. LTD. VERSUS CCE, JAIPUR [ 2016 (3) TMI 715 - CESTAT NEW DELHI] . Further, in the case of INDO GLOBAL ESTATES VERSUS COMMISSIONER OF C. EX., CHANDIGARH [ 2014 (1) TMI 407 - CESTAT NEW DELHI] , this Tribunal held that when construction of residential complex is for sale of flats and same is ultimately sold to customer under agreement, it cannot be held that there were any service bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded over the possession of flats to the prospective allottees/customers. Revenue is of the view that under the category of construction of complex services with effect from 16.6.2005 vide Notification No.15/2005 (ST) dated 7.6.2005 wherein it has been defined under section 65 (105) (zzzh) of the Finance Act, 1994 and means any service provided or to be provided to any person by any other person, in relation to construction of complex‟, the appellant was providing Construction of Complex service, therefore, it has been alleged that that appellant is providing service to the prospective buyer of construction of complex service. Accordingly, a show cause notice dated 8.10.2008 was issued to the appellant for the period April, 2005 to F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een buyer/allottee or customer is buyer and seller. To support his contention, he relied on the decision of this Tribunal in the case of Skynet Builders, Developers, Colonizer reported as 2012 (21) taxmann.com 439 (New Delhi CESTAT). He also relied on the decision of this Tribunal in the case of Bairathi Developers Pvt.Ltd. vs. CCE- 2016 (43) STR 455 (Tri.-Del.). He prayed that the impugned order be set aside. 6. On the other hand, Ld.AR opposed the contention of ld. Chartered Accountant and submits that the appellant is builder and as per decision of Hon‟ble Supreme Court in the case of Raheja Developers Corporation vs. State of Karnataka reported as 2005 NTC Vol.(27)- 273 (SC) that the activity undertaken by builders for const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t amount of cost of flats is being received in advance. Such advance amount is against sale consideration of flat and building and not for obtaining any service, so as to make it leviable to service tax . 10. The case law of Raheja (supra) relied upon by Ld.AR is not relevant to this case firstly, because, there is CBEC‟s Circular No.108/2 of 2009-ST dated 29.1.2009 which clarified that any service by a builder prior to sale of the flats is a self service and hence is no exigible to service tax. The circular of the Board is binding on the Revenue and it is not open for the Revenue to take a different stand. Secondly, this judgment was doubted by the Supreme Court in a subsequent case of Larsen and Toubro vs State of Karnatak 2008 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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