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TMI Blog2024 (4) TMI 392X X X X Extracts X X X X X X X X Extracts X X X X ..... . It has been held by the Hon ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE CUSTOMS VERSUS M/S LARSEN TOUBRO LTD. AND OTHERS [ 2015 (8) TMI 749 - SUPREME COURT] that prior to 01.06.2007, complex contracts involving supply of labour and material are not taxable, as there was no mandate under law to bifurcate the complex contract and subject the service element to tax - the classification of the work cum service involved, done by the Appellant, in the nature of construction of residential complex, etc., is rightly classifiable under the head WCS - the issue is allowed in favour of the Appellant and against the Revenue. Non-payment of service tax under the head WCS on land owner s share - HELD THAT:- The Appellant, on the basis of Joint Development Agreement cum Power of Attorney executed jointly with the land owner, develops the property on the land belonging to the land owner and further, as per the agreed ratio of sharing, they share the constructed area. Thus, the activity is in the nature of a Joint Venture/ Partnership on Principal to Principal basis. There is no relation of service provider and service receiver between the land owner and the Appellant/ builder - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eir Books of Accounts as bad debts , thus, admittedly, Appellant has not received any service nor there is any chance of receiving service and the said amount has already been written off as bad debts . Accordingly, in absence of receipt of any service, no service tax is payable under the reverse charge mechanism. Accordingly, this ground also allowed in favour of the Appellant and against the Revenue. Demand of interest on proportionate Cenvat credit reversed under Rule 6(3) of CCR, although with some delay - HELD THAT:- The non-reversal of proportionate credit was, according to the Appellant/Assessee, an inadvertent mistake and not with any deliberate or contumacious conduct for evading tax. Admittedly, Appellant has reversed an amount of Rs.1,43,27,894/- on 31.12.2013 prior to issue of SCN. Under such admitted fact, Revenue has not demanded reversal of any amount under Rule 6(3) but has demanded interest on the same under Rule 14(ii) of CCR, which provides where the Cenvat credit has been taken and utilised wrongly or has been erroneously refunded, the same shall be recovered along with interest from the manufacturer or the provider of output service, as the case may be, and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .15,57,87,785/- under the head WCS on the sale deed value for the period 2015-16. Another SCN dt.29.03.2019 was issued demanding service tax of Rs.4,21,95,300/- on similar ground for the period 2016-17. Both the SCNs were adjudicated vide common impugned OIO dt.11.03.2020 confirming the truncated demand of Rs.13,10,77,381/- and Rs.3,11,06,655/-. 4. The Appellant M/s Aparna Constructions Estates Pvt Ltd is engaged, amongst others, in the activity of development and construction of flats and Vilas and are registered with the service tax department under the category of Construction of Residential Complex service , Works Contract service and some other services. Based on the audit of the records, vide SCN dt.22.09.2014 read with Corrigendum dt.03.03.2015 was issued alleging non-payment of service tax on various counts (as detailed in the table above), proposing to demand service tax. Thereafter, another SCN dt.23.03.2015 was issued proposing to demand service tax for the period April 2013 to March 2014 as above mentioned in the table. All the appeals are taken up together as they belong to the same assessee and the issues are more or less common. 5. Heard the parties and perused the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undivided share in the land and for the value of semi-finished/unfinished construction of the dwelling unit, till the date of execution of the sale deed with the prospective buyer. Thereafter, Appellant enters into a separate construction agreement for completing/finishing of the semi-finished dwelling unit as per the agreed terms and design. The Appellant pays service tax only on the value agreed upon and received as per the construction agreement towards the construction/finishing of the dwelling unit. Appellant is not discharging service tax on the amount received till the date of execution of sale deed. We find that till the date of execution of sale deed, there was no right available to the prospective buyer to the dwelling unit and hence, whatever work was done till the date of execution of the sale deed, was by way of self-service. It is only under the construction agreement, post execution of sale deed, that the relation of service provider and service receiver takes place. Accordingly, we hold that the appellant is justified and correct in not paying service tax on the value of sale deed for transfer of undivided share in land and the value of semi-finished construction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Cenvat credit reversed under Rule 6(3) of CCR, although with some delay. The reversal of proportionate Cenvat credit under Rule 6(3) is with regard to input services like Advertisement, Project Consultancy services, Security services, Management, Maintenance and Repair service, Manpower services, Installation services, Project Evaluation services, etc., which have been used both for taxable and non-taxable services. The non-reversal of proportionate credit was, according to the Appellant/Assessee, an inadvertent mistake and not with any deliberate or contumacious conduct for evading tax. Admittedly, Appellant has reversed an amount of Rs.1,43,27,894/- on 31.12.2013 prior to issue of SCN. Under such admitted fact, Revenue has not demanded reversal of any amount under Rule 6(3) but has demanded interest on the same under Rule 14(ii) of CCR, which provides where the Cenvat credit has been taken and utilised wrongly or has been erroneously refunded, the same shall be recovered along with interest from the manufacturer or the provider of output service, as the case may be, and the provisions of section 11A and 11AA of the Excise Act or section 73 and 75 of the Finance Act 1994, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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