TMI Blog2022 (12) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaipur [the Housing Board]. According to the appellant, the work order was for building independent residential buildings on behalf of the Housing Board and each house that was constructed was an independent residential unit having independent approach with separate water and electric connection. A show cause notice dated March 18, 2010 was issued to the appellant for the period 2005-06 to 2008-09 requiring the appellant to show cause as to why service tax should not be recovered as the appellant had not paid service tax on 'construction of complex' service as required under section 65(30a) of the Finance Act. The appellant filed reply contending that the construction of a single residential unit would not fall under the category of 'construction of complex' defined under section 65(30a) of the Finance Act and in any case liability prior to June 01, 2007 could not have been fastened upon the appellant as the service rendered by the appellant would be in relation to execution of 'works contract', which was made taxable for the first time w.e.f June 01, 2007. The Additional Commissioner did not accept the contention raised by the appellant in reply to the show cause notice that cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsen & Toubro [2015 (39) STR 913 (SC)] noticed that it is only w.e.f June 01, 2007 that Section 65(105)(zzzza) of the Act was introduced to cover composite works contract and so service rendered in a works contract cannot be covered under any other category of service prior to June 01, 2007. The relevant portion of the judgment is reproduced below : "15. A reading of this judgment, on which counsel for the assessees heavily relied, would go to show that the separation of the value of goods contained in the execution of a works contract will have to be determined by working from the value of the entire works contract and deducting therefrom charges towards labour and services. Such deductions are stated by the Constitution Bench to be eight in number. What is important in particular is the deductions which are to be made under sub-paras (f), (g) and (h). Under each of these paras, a bifurcation has to be made by the charging Section itself so that the cost of establishment of the contractor is bifurcated into what is relatable to supply of labour and services. Similarly, all other expenses have also to be bifurcated insofar as they are relatable to supply of labour and services, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered by him. This would unmistakably show that what is referred to in the charging provision is the taxation of service contracts simpliciter and not composite works contracts, such as are contained on the facts of the present cases. It will also be noticed that no attempt to remove the non-service elements from the composite works contracts has been made by any of the aforesaid Sections by deducting from the gross value of the works contract the value of property in goods transferred in the execution of a works contract." (emphasis supplied) 8. In view of the law laid down by the Supreme Court in Larsen & Toubro, the Commissioner (Appeals) fell in error in observing that prior to June 01, 2007 a composite works contract can be subjected to levy of service tax under 'construction of complex' service. 9. Following the said decision of the Supreme Court in Larsen & Toubro, a Division Bench of the Tribunal in Emaar MGF Construction Private Limited vs Commissioner of Central Excise [2019 (5) TMI 1135-CESTAT, New Delhi] also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the 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;" 16. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were intended to be considered as a "residential complex or a part thereof." (emphasis supplied) 18. The Civil Appeal filed by the Department to assail the aforesaid order of the Tribunal was dismissed by the Supreme Court on July 07, 2009. 19. The aforesaid decision of the Tribunal in Macro Marvel Projects was subsequently followed by the Tribunal in A.S. Sikarwar vs. Commissioner of Central Excise, Indore [2012 (28) STR 479 (Tri. - Del.)] and the relevant 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|