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TMI Blog2024 (12) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... in Appeal that appellants were having composite contract i.e., works contract. It is also now a settled law that no demand can be made under Works Contract Service for the period prior to 01.07.2007 as there was no specified service for Works Contract prior to 01.07.2007, as held by Hon ble Supreme Court in the case of Larsen Toubro [ 2015 (8) TMI 749 - SUPREME COURT] . Therefore, the demand prior to 01.07.2007 is not sustainable on this ground itself as the service provided was in the nature of composite contract and could not have been charged to Service Tax by classifying the same under Construction of Residential Complex Service - It is also a settled legal position that any flat or building/ villa sold post receipt of OC cannot be subjected to Service Tax. However, in case, any advance has been taken before issuance of OC, then Service Tax liability is fastened on the service provider for the period post 01.07.2010. Non-production of documents in support that no advance has been received - HELD THAT:- It is observed that in the first round of appeal, the Tribunal had, while remanding the matter to the Original Adjudicating Authority, had invited his attention to Circular No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant) are in appeal against the Order of the Adjudicating Authority dt. 27.07.2017, whereby, the Original Adjudicating Authority has held that the construction undertaken by the Assessee during the period from 01.10.2006 to 30.06.2012 is covered under the taxable category of Construction of Complex Service as defined under Section 65(105)(zzzh) of the Finance Act, 1994 and after 01.07.2012, they are classifiable as declared service under Section 66E(b) of the Finance Act, 1994. The Adjudicating Authority had decided six SCNs covering the period from 01.10.2006 to 31.03.2015, totally amounting to Rs. 3,32,29,926/-, wherein, the demands were raised for different periods under different category of service. The breakup of the SCNs, nature of services proposed and amount involved are indicated below:- Sl No. SCN No. Date Demand raised under Taxable Service ST Demanded (in Rs. ) Penal Provisions invoked: Sections Period covered in the notice 1 V/15/73/2012- Adj dt. 24.04.2012 Construction of Complex Service 10,04,342 76, 78, 77(1), 77(2) October 2006 to September 2011 Works Contract Service 1,94,42,189 Transport of Goods by Road Service 4,43,905 2 V/15/223/2012- Adj dt. 22.11.2012 OIO p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ojects Ltd Vs CST, Chennai [2008 (12) STR 603 (Tri-Chennai)], he observed that though the appellant had claimed that the flats and houses were sold after obtaining Occupancy Certificate (OC), the appellant had not furnished any documentary evidence in support of their claim. At para 61.2 of OIO, he made an observation that the appellant s contention that the flats and houses were sold post receipt of OC could be accepted if no amount was collected from the prospective buyer before the grant of Completion Certificate, relying on the judgment of Hon ble High Court of Karnataka in the case of Confederation of Real Estate Developers Association of India Vs Union of India [2015 (37) STR 211 (Kar)]. 4. On the issue of liability of Service Tax on Transportation of Goods by Road Service during the period 01.10.2006 to September, 2011, he confirmed the demand of Rs. 4,43,905/- under GTA Service. Therefore, in short, the Adjudicating Authority has confirmed the demand of Service Tax under the category of Construction of Complex Service and GTA Service . Overall, out of total demand of Rs. 3,27,86,021/-, demand of Rs. 1,20,74,757/- was confirmed and the remaining amount of Rs. 2,07,11,264/- h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V/15/201/2014-Adj dt. 01.10.2014 July 2012 to March 2013 Proposed to classify services under Works Contract Service and levy tax on 40% of the total consideration received as original works Construction of Complex Service as defined under Section 66E(b) V/15/31/2015-Adj dt. 01.04.2015 April 2013 to March 2014 Proposed to classify services under Works Contract Service and levy tax on 40% of the total consideration received as original works Construction of Complex Service as defined under Section 66E(b) V/15/16/2016-Adj dt. 16.03.2016 April 2014 to March 2015 Proposed to classify services under Works Contract Service and levy tax on 40% of the total consideration received as original works Construction of Complex Service as defined under Section 66E(b) 7. Essentially, while the Adjudicating Authority had held that services would not fall under the category of Works Contract Service , and they would be taxable under the category of Construction of Complex Service , learned Advocate has relied on various case laws in support that demand cannot be confirmed under any other category other than what has been specified in the SCN, which are as follows:- i) Raghava Estates Properties Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidential unit. He has relied on the following case laws in support of his argument:- a) M/s Macro Marvel Projects Ltd Vs CST, Chennai [2008 (12) STR 603 (Tri-Chennai)] b) CCT, Hyderabad-GST Vs CSK Realtors Ltd [2024 (3) TMI 351 CESTAT Hyderabad] c) CCE ST Vs Alliance Infrastructure Projects Pvt Ltd [2021 (11) TMI 282 (Kar-HC)] d) Baba Construction Pvt Ltd Vs CCE ST, Ghaziabad [2018 (15) GSTL 345 (Tri-Allahabad)] 10. In respect of liability of Service Tax on Fortune Heights Apartments, where they had constructed 220 flats, they have already submitted four OCs issued by M/s Ravi Kumar Enterprises, Consultant Civil Engineers, Approved Valuers Licensed Engineers in GVMC Visakhapatnam Urban Development Authority (VUDA) showing the details of the flats which were completed by 31.12.2010, 31.03.2011, 30.06.2011 15.02.2012 and the OC dt. 03.03.2012 issued by the Commissioner of GVMC. The receipt of these four OCs has been admitted by the Adjudicating Authority at para 14 of the OIO dt. 27.07.2017. Appellant has also furnished details of the 220 flats sold in the Fortune Heights Apartments in the following manner and the reasons why they are not leviable to the Service Tax:- a) 32 flats we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65(105)(zzzza) of the Finance Act, 1994, wherein, under sub-clause (ii), it is provided that Construction of Residential Complex or a part thereof is taxable as Works Contract Service , Service Tax on villas and residential flats w.e.f. 01.07.2007 only in respect of composite contracts providing services including transfer of property in goods, cannot be demanded under the category of Construction of Residential Complex Service . He has relied on the following case laws:- a) URC Constructions Pvt Ltd Vs CCGST CE, Salem [2024 (7) TMI 106 CESTAT Chennai] b) Raaga Mayuri Builders Pvt Ltd Vs CCT, Tirupathi [2023 (12) TMI 750 CESTAT Hyderabad DB] c) Sai Teja Constructions Vs CST, Hyderabad [2019 (7) TMI 575 CESTAT Hyderabad DB] 13. He has further clarified that the amendment brought in Section 65(105)(zzzh) would also not make them liable for the Service Tax as it covers only service simpliciter and not applicable to composite contracts. He has relied on the judgment of Raj Construction Company Vs CCGST CE, Udaipur [2024 (11) TMI 11 CESTAT New Delhi]. 14. On the other hand, learned AR has contested these arguments mainly on the ground that they have not submitted ledger copies, etc., i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own by them. Further, the composition scheme is not applicable automatically but needs to be opted by the assessee subject to fulfillment of conditions laid therein. 19. Essentially, the Department is not opposing the classification of the services under Works Contract Service and are only appealing the extension of abatement given to the assessee by the Adjudicating Authority on the ground that benefit of composition scheme cannot be extended suo moto. 20. Heard both the sides and perused the documents. Further, as all these appeals are having common issue, we intend to take up all these appeals together for the purpose of disposal. 21. It is an admitted fact that the nature of service being provided by the assessee was more appropriately classifiable under Works Contract Service for the period prior to 01.04.2012 as also during the subsequent period. This is also clear from the department s stand in Appeal No.ST/22073/2014 that appellants were having composite contract i.e., works contract. It is also now a settled law that no demand can be made under Works Contract Service for the period prior to 01.07.2007 as there was no specified service for Works Contract prior to 01.07.2007 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s attention to Circular No. 151/2/2012-ST dt. 10.02.2012, which clarified about non-leviability of Service Tax for the period prior to 01.07.2010 in respect of construction services provided by the builder/ developer in terms of Board Circular No.108/02/2009-ST dt. 29.01.2009. Whereas, for the period after 01.07.2010, the construction services provided by the builder/ developer are taxable in case any part of the payment/ development rights of the plan was received by the developer before the issuance of completion certificate. Therefore, the principles are very clear that if any payment has been received from the customer or development right has been received from the land owner then when the construction service is provided to both the land owner and the buyer, Service Tax would be leviable in case advance development rights have been received. 24. Further, there are certain submissions by the department concerning calculation of Service Tax on account of non-furnishing of relevant documents evidencing non-receipt of advance, as also the authority for issuance of OC in the respective area of construction and therefore, the matter may be considered for remanding back to the Origi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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