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TMI Blog2024 (7) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... NT, PRIME DEVELOPERS VERSUS COMMISSIONER OF GST CENTRAL EXCISE, CHENNAI [ 2018 (9) TMI 1149 - CESTAT CHENNAI] had held that the demand of service tax for composite contracts can be made only under Works Contract Services. For this reason also the demand requires to be set aside. The period involved being prior to 01.07.2010 the decision of the Tribunal in the appellant s own case for the previous period would be squarely applicable for this period also. There are no grounds to take a different view for this subsequent show cause notice. The demand of service tax, interest and penalties thereon for the period June 2009 to June 2010 cannot be sustained. The impugned order is modified to the extent of setting aside the demand of service tax along with interest for the period June 2009 to June 2010. The penalty imposed under Section 78 in regard to this is set aside entirely. Appeal allowed. - MS. SULEKHA BEEVI.C.S., MEMBER (JUDICIAL) AND MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Ms. Radhika Chandrasekar, Advocate, for the Appellant Shri Harendra Singh Pal, Authorised Representative for the Respondent ORDER Brief facts are that the appellant is engaged in the business of constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or Industrial Construction Services when the contracts are indivisible a composite nature. The decision of the Tribunal in the case of Real Value Promoters Pvt Limited vide Final Order 42436-42438/2018 dated 18.09.2018 was relied. The said decision was followed by the Tribunal in the case of Jain Housing and Construction Limited versus Commissioner of Service Tax vide Final Order No.40077-40079/2023. The demand of service tax was set aside by the Tribunal by following the decision in the case of Real Value Promoters (supra). Against the said order, the department filed appeal before the Hon ble Apex Court. The department appeal was dismissed as reported in (2023) 10 CENTAX 171. It is prayed that the appeal may be allowed. 5. Ld. AR Shri. Harendra Singh Pal appeared and argued for the department. The findings in the impugned order was reiterated. 6. Heard both sides. 7. On the narration of facts as above, we find that the issue involved in this appeal is a continuation of show cause notice dated 19.04.2010. The department had raised the demand for the earlier period from 16.06.2005 to May 2009 in the previous show cause notice on very same issue. The Tribunal after considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services rendered by the assesse regarding construction of 120 flats with common amenities like lift, club house, gymnasium, mini theatre, children s play area, etc, for the land owners M/s.City Lando Corpn and 7 others, as a builder and subsequently entering into construction agreements with various customers as a builder, is classifiable under Construction of Complex Service and are liable for payment of Service Tax. 18. For rendering construction of complex service, the assesse received service charges, costs of construction, etc. From 16.06.2005 to May 2009 the assesse realized Rs.32,59,11,561/- and the amount of Service Tax payable thereon works out to Rs.3,99,60,537/- as detailed in Annexure-I to this notice. 8. It is very much clear that the appellant is a promoter of residential projects. The Board vide Circular dated 29.01.2009 has clarified that a Promoter/Developer/Builder is not liable to pay service tax for Construction of Residential Complex Services prior to 01.07.2010. The Tribunal in the case of M/s.Krishna Homes Vs. Commissioner of Central Excise 2014 (34) STR 881 held that the demand of service tax against a Promoter/Builder/Developer cannot sustain for the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be handed over on completion of the construction and full payment having been made by the customers. It is seen that on this point, the Tax Research Unit of the Central Board of Excise Customs, which is a wing of the C.B.E. C. dealing with legislation work, had vide Circular No. 332/35/2006-TRU, dated 1-8-2006 clarified that in case where a builder, promoter, developer builds a residential complex having more than 12 residential units by engaging a contractor for construction of such residential complex, the contractor shall be liable to pay Service Tax on the gross 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 ..... 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