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TMI Blog2023 (4) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... llant herein also claimed that Learned Adjudicating authority wrongly confirmed the demand under the head of cleaning services, whereas their activity is not covered under the scope of cleaning services. It is also observed that the submission of the learned Counsel as well as submission made in the appeal memorandum that the adjudicating authority has not dealt with issue of service provided under the category of construction of complex service services in proper perspective. Appellant claimed that they had not constructed any building or part thereof, having more than 12 residential units. Further the bunglow constructed by the appellant at KPT colony for use by the employee of M/s Kandla Port Trust is for personal use hence not taxable. The issue needs to be remanded back to the adjudicating authority for re-appreciation of the claim of the appellant. This is a fit case for remand the matter to Learned Adjudicating authority for re-consideration of the overall case - The appeal is allowed by way of remand to the adjudicating authority. - Service Tax Appeal No. 10188 of 2013 - Final Order No. A/ 10856 /2023 - Dated:- 10-4-2023 - HON'BLE MEMBER ( JUDICIAL ) , MR. RA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of other persons, covered under the category of Storage and warehouse services , which has been taxable from the year 2002. It was alleged that the appellant by wrongly showing various taxable service provided by them under exempted service category had not paid the Service tax amounting to Rs. 62,89,128/-during the period from 2005-06 to 2009-10. Accordingly, show cause notice dated 15-04-2011 was issued proposing the Service tax demand along with interest and penalty. The Adjudicating authority vide impugned order confirmed the demand of service tax along with interest and penalty. Aggrieved by the impugned order present Appeal has been filed. 03. Shri Amal Dave, Learned Counsel appearing on behalf of the appellant submits that the Learned Commissioner has confirmed Service tax on the amount of Rs. 16,17,443/- which is the amount received by the Appellant from the Kandla Port Trust for constructing Watch Tower. The activity done by the Appellant is squarely covered under exemption Notification No. 25/2007-ST dated 22.05.2007, whereas exemption has been given to any person which does an activity in relation to the construction of port or other port. The Commissioner has denie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the explanation to Section 65(90a) of the Finance Act whereby there is an exclusion clause to eligibility of the activity of constructing the residential complex, if it is indented for personal use. The word personal use including permitting the complex for use as residence by another person on rent without consideration. It is a settled legal position that when a residential complex is constructed for residence of the employee, then it is exempt from the payment of service tax. The Commissioner has erroneously confirmed the demand on the construction activity undertaken by the appellant and hence all the demand is not sustainable. He placed reliance on the following decisions:- M/S. NITHESH ESTATES LTD. 2015(40) STR 815 M/S. B.L. MEHTA CONSTRUCTION PVT. LTD. 2018(8) GSTL 92 MURARILALSINGHAL 2019(25) GSTL 45 M/S MALL ENTERPRISE 2016(41) STR 119 3.3 He also submits that Appellant had entered into contract with the kandla Port Trust for the activity of modifying the port, barge handling, strengthening of the surface and dredging. The appellant entered into such contract for carrying out all the mentioned activities and not for dredging alone. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... periodical rent on such godowns. The activity undertaken by the appellant was hence renting of immovable property service inasmuch as the entire godown was given on rent. Renting of immovable property service become taxable service on 01.06.2007 and not before such date. The appellant had collected the amount of rent by raising bill during the FY 2005-06 and 2006-07 before the levy of such service was introduced. The adjudicating authority has wrongly confirmed the demand under the category of storage and warehousing of goods services. The adjudicating authority could not have confirmed the demand under such category of service inasmuch as the appellant has actually given the godown on periodical rent but has not charged any amount towards warehousing of the goods of a third party or towards storage of such goods. Hence the services are categorically classified under the head of renting of immovable property service and not storage and warehousing service. Therefore, the action of the adjudicating authority to confirm the demand under storage and warehousing services category is erroneous and hence the demand is not sustainable. 04. Shri Rajesh Agarwal, learned Superintendent (A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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