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TMI Blog2024 (8) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... egory of Works Contract service . Therefore, they are defending the demand made under the category of Works Contract, without taking any defence on account of Construction of Complex service. The confirmed demand is not legally sustainable since the demand was confirmed under the category of Construction of Residential Complex service while the SCN was issued under the category of Works Contract service . The Tribunals have also been holding that no Service Tax is payable till 01.07.2010 irrespective of the category under which the service may fall - Appeal allowed. Time limitation - HELD THAT:- First of all, the Appellant was properly registered with the Department and they have been filing their Returns regularly. Their ST3 Returns are one of the relied upon documents while issuing the SCN. Further, the VAT Returns have been referred to in the SCN, which shows that they have filed their VAT Returns regularly. Thus, all the data with regard to their turnover was very much being shown in the Returns. Further, in order to clarify the issue as to whether Construction of Residential Complex service would be taxable or not, CBIC had issued various circulars between the period 2006 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise Service Tax, Visakhapatnam-II [2023 (384) ELT 216 (Tri-Hyd)] 5. He submits that in these cases, it has been held that the confirmation of demand cannot be under any other category other than what has been specified in the SCN. If such an attempt is made then it would amount to traversing beyond the scope of SCN. Holding this, the Tribunals have held that demands cannot be legally sustained. 6. Without prejudice to their submissions, he further submits that it has been held time and again by the Tribunals that Service Tax is not payable under the category of Construction of complex service till 30.06.2010. He cites the case law of Modi Ventures Vs Commissioner of Central Tax, Secunderabad-GST [Final Order No.30882/2020 dt.03.03.2020 (Tri-Hyd)], wherein this Bench has held that the Service Tax on Construction of complex service would be applicable only after 01.07.2010. Accordingly, he submits that the smaller portion of confirmed demand for the period 01.04.2007 to 31.05.2007 as well as erroneously confirmed demand for the period till 01.07.2010 is required to be set aside even on this count. In view of these submissions, he prays that the Appeal may be allowed on meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Adjudicating Authority for quantifying the demand after considering the fact that Tribunals and Hon ble High Courts have been consistently holding that no Service Tax is payable under whichever category for such services till 30.06.2010. He makes further written submissions about the abatement allowed by the Adjudicating Authority while confirming the demand. 10. Heard both sides and perused the Appeal papers, synopsis and other documentary evidence placed before us. 11. The following extracts of the SCN would be relevant:- 5.2.3 In view of the same, it appears that the services rendered by REL to their clients, prior to 01.06.2007 are classifiable under Construction of Complex service and subsequent to 01.06.2007 as Works Contract service . . . 5.4.2 In view of the aforementioned reasons, the service tax and cess liabilities of REL had been calculated on the taxable value under the composition scheme for Works Contract for the period from 01.06.2007 onwards. Hence, the service tax is payable at the rate of 2% for the period up to 28.02.2008 and at the rate of 4% from 01.03.2008 onwards, on the works undertaken by REL. 12. The above allegations in the SCN would go to show that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the prospective buyers. As stated supra, in Padmanabhapuram Colony, the noticee provided construction service to the buyers of independent Housing Units whereas semi-finished flats were sold to the buyers in Anand Vihar, Sivasadan and Prakritivihar and provided finishing services to the said buyers for a consideration decided mutually. These factors would establish unequivocally that the services rendered by the noticee in this case amounts to the Construction of Residential Complex service as defined in Sec. 65(91a) read with Sec. 65(105)(zzzh) of the Finance Act, 1994 and the service rendered in this case is accordingly treated as Construction of Residential Complex service and the service tax liability thereon has to be determined. Further, the provisions under Notification No.1/2006- ST are required to be applied for calculation of the service tax liability. However, this is allowed subject to the assessee s compliance with reference to the conditions specified under the above said Notification, in so far as non-availment of cenvat credit is concerned. 13. A careful reading of the above finding would clarify that the Adjudicating Authority has confirmed the demand under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held as under:- 10. He submits that although the proposal in the show cause notice and the confirmation in the impugned order is classifying the goods as plant growth regulators which apparently is not correct considering the nature of the goods manufactured, they cannot be classified under CETH 3105 as well. Therefore, the appropriate heading is CETH 3824 as chemical products not elsewhere specified or included. 11. On a specific query from the bench as to whether this was the proposal in the show cause notice, learned Authorized Representative for the Revenue submits that it is not so but he asserts that it is necessary that the Tribunal indicates the correct classification of the goods in question even if such classification was not mentioned in the show cause notice or in the impugned order. 12. Rebutting these submissions, learned counsel for the appellant submits that neither the Tribunal nor the Original Authority could have gone beyond the show cause notice which has only proposed classification of the products manufactured by them as plant growth regulators, which is clearly not sustainable. If the proposal is to classify their goods under a different heading an appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Complex service while the SCN was issued under the category of Works Contract service . The Tribunals have also been holding that no Service Tax is payable till 01.07.2010 irrespective of the category under which the service may fall. Therefore, we allow the Appellant s Appeal on merits. 18. Coming to the argument of the Appellant in respect of time bar, we find force in the same. First of all, the Appellant was properly registered with the Department and they have been filing their Returns regularly. Their ST3 Returns are one of the relied upon documents while issuing the SCN. Further, the VAT Returns have been referred to in the SCN, which shows that they have filed their VAT Returns regularly. Thus, all the data with regard to their turnover was very much being shown in the Returns. Further, in order to clarify the issue as to whether Construction of Residential Complex service would be taxable or not, CBIC had issued various circulars between the period 2006 and 2012. Only much later, in 2010 it emerged that no Service Tax would be required to be paid till 01.07.2010. All the matters prior to this were being litigated at various levels. Hence, it can also be said to be as an i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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