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TMI Blog2023 (10) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... wrong premise to confirm the impugned demand. Moreover, it is also clear, by virtue of there being no rebuttal by the Revenue, that the main contractor namely, M/s. Southern Properties and Promoters, had remitted Service Tax on the project, for which the appellant was only a sub-contractor. No doubt, the sub-contractor cannot claim immunity from Service Tax just because the liability was on the main contractor, but once we agree that what was involved was indivisible works contract which was not at all amenable to Service Tax in the hands of a builder, at least up to the date of insertion of Explanation i.e., 1.07.2010, there cannot be any liability in the hands of the appellant up to 01.07.2010 under construction of complex service - Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per square foot was fixed as the primary agreement was for the construction of residential complex. The appellant had undertaken the construction work as a sub-contractor and it is also recorded that the principal contractor had discharged the applicable Service Tax on the entire project. 2.2 At paragraph 08.05, the Commissioner observes that the classification of the taxable service was the construction of residential complex having more than 12 residential units and the appellant having undertaken the construction of the residential complex, is the service provider. 2.3 The original authority further records that the contention of payment of Service Tax by the principal contractor on behalf of the appellant defies logic and is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would also argue that the service rendered was indivisible works contract service, which has also been admitted in the impugned order and hence the demand up to 31.05.2007 is liable to be set aside, as per the decision of Hon ble Apex Court in the case of Commissioner of Central Excise and Customs, Kerala v. M/s. Larsen Toubro Ltd. [2015 (39) S.T.R. 913 (S.C.)], which has been followed by various CESTAT Benches. He also relied on the decision of the Hon ble Apex Court in the case of M/s. Total Environment Building Systems Pvt. Ltd. v. Deputy Commissioner of Commercial Taxes ors. [2022 (63) G.S.T.L. 257 (S.C.)]. 5.3 He would further contend that up to 30.06.2010, there can be no liability since the Explanation which expanded the scop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the hands of the partner of the partnership firm, which in fact not only defies the logic but also contrary to law. 6. Per contra, Shri M. Ambe, Ld. Deputy Commissioner, relied on the findings in the impugned order. 7. We have heard the rival contentions and we have gone through the documents placed on record, and the only issue that arises for our consideration is: whether the demand, as confirmed in the impugned order under construction of residential complex service for the period from 01.02.2007 to 31.01.2012, is sustainable? 8. The Show Cause Notice came to be issued on 17.04.2012 for the above period proposing, inter alia, demand of Service Tax by invoking the extended period of limitation within the meaning of proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, apparently, the tax is demanded under a wrong classification which is not permissible in view of the decision of the Hon ble Apex Court in the case of M/s. Larsen Toubro Ltd. (supra). 10.2 Moreover, the Show Cause Notice having been issued in 2012, the demand, if at all, could only be for the normal period, provided the same is raised under the proper classification, but however, the same not being the case here, there is no question of sustaining any part of the demand. 11. In view of our above discussions, the demand in the impugned order cannot sustain, for which reason the same is set aside. 12. The appeal is allowed with consequential benefits, if any, as per law. ( Order pronounced in the open court on 13. 10. 2023 ) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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