9911796707
TMI Blog2024 (1) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax under CICS/CCS/RCS prior to 1.6.2007 and after. The impugned orders are not sustainable in law and thereafter, the same is set aside - appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... nd construction of residential complex service. 4. Heard both the parties and perused the record. 5. Ld. Counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law and the binding judicial precedents. He further submitted that it is not disputed that the contract executed by the appellant was Works Contract which includes the material and the service element. He further submitted that the service tax on works contract was made applicable w.e.f. 01.06.2007 whereas the period involved in the present case is 10.09.2004 to 31.03.2010. He further submitted that even after 01.06.2007 service tax cannot be demanded under the category of construction of residential/commercial complex service in case of composite contract including the services as well as the material. 6. He further submitted that this issue is no more res integra and has been settled by various decisions of the Tribunal wherein the Tribunal after relying upon the decisions of the Hon'ble Apex Court in the case of Commissioner of C.Ex & Cus. Kerala Vs. Larsen & Toubro Ltd. reported in 2015 (39) S.T.R. 913 (S.C.). He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and carpentry, fencing and ralling, construction of swimming pools, acoustic applications or fittings and other similar services; or (c) repair, alteration, renovation or restoration of, or similar services in relation to, residential complex; 7.3 'Residential Complex was defined in section 65(91a) ibid during the disputed period as under:- "residential complex" means any complex comprising of - (1) a building or buildings, 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. the purposes of this clause, Explanation. For the removal of doubts, it is hereby declared that for (a) "personal use" includes permitting the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. 913 (S.C.). Further, this very issue has been considered in the various decisions cited (Supra). For the sake of convenience we will refer here the decision of the Real Value Promotors Pvt Ltd cited (Supra) wherein coordinate Bench of the Tribunal has discussed all the provisions regarding construction of complex service residential/complex and Works Contract service which was introduced w.e.f. 01.06.2007 and has held as under : "7.5 There was considerable litigation on the issue whether service tax can be levied on indivisible works contract prior to its introduction from 1.6.2007 which was finally settled by the Hon'ble Apex Court in the case of Commissioner of Central Excise Vs. Larsen & Toubro Ltd. reported in 2015 (39) STR 390 (SC) = 2015-TIOL-187-SC-ST. The Hon'ble Apex Court held that the taxable services of 'consulting engineer under section 65(105)(g) of the Finance Act; erection, 'commission and installation services' under section 65(105)(zzd) of the said Act; 'technical testing and analysis' under section 65(105)(zzh) ibid, 'construction services' under section 65(105)(zzq); construction of complex services under section 65(105)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these appeals will still have to be held as simpliciter without any other element in them namely without any material or goods supply involved. That is definitely not the case in the facts of these appeals. The activities of the appellants will therefore continue to be in the nature of composite works contract services and hence even after 1.6.2007 for the periods disputed in these appeals they cannot be brought within the fold of commercial or industrial construction service or construction of complex service as proposed in the show cause notices and confirmed in the impugned orders. 7.8 On the contrary, being composite works contracts, they will necessarily fall within the ambit of works contract service as defined under Section 65(105) (zzzza) ibid. It is possibly with this intent in mind that the lawmaker have included in the definition of works contract, erection and commissioning service, Commercial or industrial construction service, construction of complex service and in addition turnkey project including EPC projects within the definition of works contract service. 7.9 At this juncture, it is worthwhile to reproduce excerpts from the Union Finance Minister's budget ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited. Even in the appeal, the Revenue submitted that the respondent were engaged in construction services liable to tax under tax entry Section 65(105) (xxg). The grievance of the Revenue is with reference to commercial nature of the construction undertaken by the respondent and not on the correct classification of taxable activity." b. In the case of Skyway Infra Projects Pvt. Ltd. Vs. Commissioner of Service Tax, Mumbai- 2018-TIOL-360-CESTAT-MUM, in respect of identical issue for the period from 2005 to 2012, the Tribunal in para 7 has held as under:- "7. On careful consideration of the submissions made by both the sides, we find that the issue falls for consideration is whether the services rendered by the appellant in respect of 52 contracts entered with various Govt. authorities need to be taxed under MMRC/CICS/ECIS or otherwise. It is on record and undisputed that the adjudicating authority has specifically held that all the 52 contracts which has been executed by the appellants are with material. Learned Counsel was correct in brining to our notice that the said findings of the adjudicating authority that the appellant is eligible for abatement of 67% of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of a works contract.' 10. In view of this specific decision and the admitted claim of the appellant that they are not providers of commercial or industrial construction service' but of ' works contract service, no tax is liable on construction contracts executed prior to 1st June, 2007. 11. Insofar as demand for subsequent period till 30th September, 2008 is concerned, it is seen that neither of the two show cause notices adduce to leviability of tax for rendering 'works contract service'. On the contrary, the submission of the appellant that they had been providing 'works contract service had been rejected by the adjudicating authority. Therefore, even as the services rendered by them are taxable for the period from 1st June, 2007 to 30th September, 2008 the narrow confines of the show cause notices do not permit confirmation of demand of tax on any service other than 'commercial or industrial construction service'. It is already established in the aforesaid judgment of the Hon'ble Supreme Court that the entry under Section 65(105)(zzd) is liable to be invoked only for construction simpliciter. Therefore, there is no scope for vivisection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service in the light of the Hon'ble Supreme Court judgment in Larsen & Toubro (supra) upto 1.6.2007 b. For the period after 1.6.2007, service tax liability under category of 'commercial or industrial construction service under Section 65(105)(zzzh) ibid, 'Construction of Complex Service' under Section 65(105)(zzzą) will continue to be attracted only if the activities are in the nature of services simpliciter. c. For activities of construction of new building or civil structure or new residential complex c etc. involving indivisible composite contract, such services will require to be exigible to service tax liabilities under 'Works Contract Service' as defined under section 65(105)(zzzza) ibid. d. The show cause notices in all these cases prior to 1.6.2007 and subsequent to that date for the periods in dispute, proposing service tax liability on the impugned services involving composite works contract, under 'Commercial or Industrial Construction Service' or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under works contract service, the demand raised under wrong head of service cannot sustain. 7. As per above discussion, the demand raised under "commercial or industrial construction service" shall not sustain. Hence, the same is set aside. 20 . In M/s Choudhary Stone Crushing Company v. Commissioner of Central Excise and Service Tax, Jaipur-II [2019 (3) TMI 38-CESTAT, New Delhi), the Tribunal observed as under:- "8. For period commencing on 1-6-2007 the composite services would be liable for classification under Works Contract Service only But we note that Show Cause Notice has proposed the demand for service tax under the category of Commercial and Industrial Construction Service as well as Repair and Maintenance Service. Hence we are of the view that the confirmation of demand under the category of WCS will not be proper particularly in view of the decision of the Tribunal in case of Ashish Ramesh Dasanvar (supra) wherein Tribunal has taken the view that demand for Service Tax is to be set aside if the Show Cause Notice proposed a classification different from WCS for construction activity." 21. A Division Bench of the Tribunal in M/s Gurjar Construction as Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
