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TMI Blog2024 (3) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed vide Order-In-Appeal NO. AHM-EXCUS-002-APP-113-2023-24 dated 29-09-2023 by Commissioner (Appeals), Central Excise, Ahmedabad, upholding Service Tax Demand of only Rs. 18,10,742 /- with interest & penalties. Hence, Appellant is before this Tribunal against the demand of Service Tax Rs. 18,10,742/- with interest and penalties. 3. Shri P.P Jadeja, Learned Consultant appearing on behalf of Appellant reiterated grounds of Appeal and submitted written synopsis with enclosures and relied upon decisions during the PH, which is taken on record. He submits that the Service Tax demand is not sustainable mainly on the following reasons :- * SCN suffers from incurable deficiency. Hence orders thereon are not sustainable. * Service Tax demand cannot be raised, without causing any independent inquiry by Central Excise officers adducing evidences on Income Data shared by the Income Tax. * Order is beyond the scope of SCN in the facts of this case, hence it is not sustainable. * Appellant merely developed land of land owners' land as approved by AUDA, under the agreements with land owners and carried out activities for approved 16 residential units for individual known as Sharnam Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended for sale to a buyer, wholly or partly, except where the entire consideration is received after issuance of completion-certificate by the competent authority. However, construction of complex intended for sale to a buyer is not correctly considered in these Orders. It is a settled law that in absence of sub-heading in which service falls, taxability of service cannot be decided. Decisions in case of United Telecoms Ltd v. CST - 2011(22)STR571 (TRI), Swapnil Asnodkar-2018(10)GSTL-479(Tri-Mum), Balaji Enterprises - 2020(33)GSTL-97 and ITC Ltd. -2014(33)STR-67(Tri-Del) supports this view. It is also settled law that any defective SCN can not be improved subsequently by adjudication orders and that any Order by Revenue, beyond the scope of show cause notice is not sustainable is the settled law. Decisions relied upon by Appellant supports the submissions on these points. 5.1 We find from the records that as per the agreements with land owners, Appellant have developed the lands of landlords as per AUDA approved drawings and directions of land owners and have carried out activities on the said lands to develop the residential units. Appellant has actually not sold any resident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Corporation Ltd has been set aside in the various judgments including the judgments cited by the Appellant in following few cases decided recently by the Tribunal and higher forums :- * D H Patel vs. CCE & S.T, Surat Final Order A/10853/2023 Dated 10.04.2023 * Riddhi Siddhi Construction vs. CCE, Vadodara - Final Order A/11114-11117/2023 dated 03.05.2023 * RN Dobariya vs. CCE & S.T, Surat - Final Order A/10257/2023 dated 01.02.2023 * Brahma Developers vs. CCE, Tirunelveli -2018 (10) GSTL 27 (Tri. Chennai) -. * Khurana Engineering Ltd vs. CCE, Ahmedabad - 2011 (21) STR 115 (Tri. Ahmd.) - * Uni Well Exim vs. State of Gujarat - 2022 (63) GSTL 289 (Guj.) We also find that in the above cases, the residential units were constructed by the other similarly placed assesse for the staff/employee, whereas in this case residential units have been developed by Radhe Villa Co-Operative Society for its Members only. Radhe Villa Co-Operative housing society is registered since 25-05-2009 under the Gujarat Co-Operative Societies Act 1961 and the said Society has authorized Appellant under their Agreement to develop their land and develop residential units in Buildings/Complex. We fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in favour of that assessee. Thus, it is a service to its Members by the Society namely Radhe Villa Co-Operative Society, where no Service Tax levy is attracted. Appellant has also submitted a list of first 70 Members of the Radhe Villa Co-Operative Society, with details of flat Numbers etc, who have been allotted individual Residential Units for their personal use. Residential units in "Radhe Villa" have been given to its Member by "Deed of Allotment", which can be seen from the relevant documents scanned as under :- 5.3 We also find that the Scheme "Sharnam Villa" has been developed on the land of Landowners S/shri Dilipsinh Navalsinh Sisodiya and others, wherein the Regulatory Authority Ahmedabad Urban Development Authority[AUDA] had given permission dt. 20-03-2013 for 16 residential units to S/shri Dilipsinh Navalsinh Sisodiya and others, who were actual land lords. We find that as per their agreements with land owners, Appellant has developed the land and have carried out activities including construction of 3 row houses [buildings] with 5, 5 and 6 Residential Units. Thus, these 16 units, were sold by the said land owners to said 16 individuals under sale deed. The Scheme wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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