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TMI Blog2024 (5) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... r the period prior to 1.7.2010. Benefit of abatement - HELD THAT:- The works executed are composite in nature which involves use of materials as well as rendition of services. The Tribunal in the case of Jain Housing Construction Ltd. 2023 (2) TMI 1044 - CESTAT CHENNAI] had followed the decision in the case of Real Value Promoters Pvt. Ltd. Vs CGST CE, Coimbatore [ 2018 (9) TMI 1149 - CESTAT CHENNAI] and held that contracts of composite nature cannot be subjected to levy of service tax under RCS prior to 1.7.2010. The decision in the case of Jain Housing Construction Ltd. was maintained by the Apex Court in [ 2023 (9) TMI 816 - SC ORDER] - the demand for the period upto 1.7.2010 cannot sustain and requires to be set aside. Thus, the demand has been confirmed only for the construction activities undertaken by appellant for the period prior to 1.7.2010. Therefore, the demand for the period prior to 1.7.2010 cannot sustain - the order of appropriation of Rs.67,77,193/- paid for the period after 1.7.2010 need not interference. The appellant does not contest this. The demand of service tax, interest and penalties for the period upto 1.7.2010 set aside - appeal allowed. - HON BLE MS. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to September 2009 as well as October 2009 to September 2010. The total taxable value has been determined after extending the benefit of abatement as per Notification No.1/2006 dated 1.3.2006. 2.1 It is submitted that the appellant had constructed and sold the flats as a builder / promoter / developer and therefore is not liable to pay service tax during the disputed period. 2.2 Para 8.1 of the impugned order was adverted to by the learned counsel to submit that the adjudicating authority has noted that the appellant has entered into two separated agreements with the customers; one agreement being Sale Agreement which is for sale of undivided share of land and another agreement called Builder s Agreement for construction of building which specifies the specification of construction required. These documents would show that the appellant has carried out construction as a builder / promoter / developer and therefore the Board s circular No.108/02-2009-ST dt. 29.1.2009 would be applicable to the appellant. The circular has clarified that a builder / promoter / developer is not required to pay service tax upto 1.7.2010. The said issue was considered by the Tribunal in the case of Krish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Residential Complexes for the period January 2009 to September 2009 and October 2009 to September 2010. The appellant is a builder / promoter. The issue as to whether builder / promoter is liable to pay service tax prior to 1.7.2010 was considered by the Tribunal in the case of Krishna Homes (supra). The Tribunal referred Board s Circular No.108/02/2009-ST dt. 21.09.2009 and also considered the Explanation added to Section 65 (105) (zzzh) which was introduced with effect from 1.7.2010 and held that promoter / builder / developer is not liable to pay service tax under construction of Residential Complex for the period prior to 1.7.2010. The relevant para of the decision in Krishna Homes reads as under : 8. Coming first to the question as to whether the activity of M/s. Krishna Homes and M/s. Raj Homes was taxable during the period of dispute or not, by Finance Act, 2005, Clause (zzzh) was introduced into Section 65(105) of Finance Act, 1994, so as to bring within the purview of the term taxable service , a service provided or to be provided to any person by any other person in relation to construction of complex . The expression construction of complex was defined in sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss amount charged for the construction service provided to the builder/promoter/developer under construction of complex service falling under Section 65(105)(zzzh) of the Finance Act, 1994 and that if no person is engaged by the builder, promoter, developer for construction work who undertakes construction work on his own without engaging the services of any other person than in such cases, in absence of the service provider and service recipient relationship, the question of providing taxable service to any person by any other person does not arise. W.e.f. 1-7-2010 an explanation was added to Section 65(105)(zzzh) which was as under :- Explanation. - For the purposes of this sub-clause, the construction of a new building which is intended for sale, wholly or partly, by a builder or any person authorized by the builder before, during or after construction (except in cases for which no sum is received from or on behalf of the prospective buyer by the builder or the person authorized by the builder before grant of completion certificate by the authority competent to issue such certificate under any law for the time being in force) shall be deemed to be service provided by the builde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice versa) as reported in 2019 (31) G.S.T.L 241 (Tri.-Hyderabad) to set aside the demand for the period prior to 1.7.2010. 6. It is further to be noted that in the present case the demand has been quantified after giving benefit of abatement. It is thus established that the works executed are composite in nature which involves use of materials as well as rendition of services. The Tribunal in the case of Jain Housing Construction Ltd. (supra) had followed the decision in the case of Real Value Promoters Pvt. Ltd. Vs CGST CE, Coimbatore vide Final Order No.42436-42438/2018 dt. 18.09.2018 and held that contracts of composite nature cannot be subjected to levy of service tax under RCS prior to 1.7.2010. The decision in the case of Jain Housing Construction Ltd. (supra) was maintained by the Apex Court as reported in (2023) 10 Centax 171 (SC). We are of the considered opinion that for these reasons, the demand for the period upto 1.7.2010 cannot sustain and requires to be set aside. 7. In the SCN it is mentioned that the demand is raised for the period after 1.7.2010 also (July 2010 to September 2010). In para-4 of the SCN it is stated that the appellant has paid the service tax of Rs. ..... 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