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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 ..... nance 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 passed no. VIZ-STX-001- COM-11-14 dt. 17.02.2014 Works Contract Service 71,90,961 76, 77(1)(a) & 77(2) 2011-12 (Adjudicated vide OIO No.11/2014 dt. 17.02.2014) Transport of Goods by Road Service 9,957 3 V/15/14/2014- Adj dt. 21.05.2014 Works Contract Service 45,10,197 76, 77(1), 77(2) 01.04.12 to 30.06.12 4 V/15/201/2014- Adj dt. 01.10.2014 Works Contract Service 32,84,991 76, 77 01.07.12 to 31.03.13 5 V/15/31/2015- Adj dt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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/- has been dropped. The Adjudicating Authority has also appropriated Service Tax amount of Rs. 17,98,255/-. 5. The factual matrix of the case is that the appellant is engaged in construction of villas and residential flats. After taking registration under 'Construction of Complex Service' on 23.11.2006, no returns were filed till October, 2008 and therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch 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 Vs CCT, Guntur [2024 (8) TMI 1336 - CESTAT Hyderabad DB] ii) PK Agarwalla Vs CCE & ST, Kolkata [2024 (8) TMI 716 - CESTAT Kolkata] iii) KPR Fertilizers Ltd Vs CC, CE & ST, Visakhapatnam-II [2023 (3) CENTAX 110 (Tri-Hyd)] iv) CCE & C, Belgaum Vs Mahakoshal Beverages Pvt Ltd [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 were sold on or before 30.06.2010. No Service Tax is leviable on these flats as per CBEC Circular dt. 10.02.2012. b) 150 flats were sold after receipt of OCs as duly certified by Chartered Accountant. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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., in order to cross check whether they have received any advance before the issuance of OCs and therefore, one cannot come to the conclusion in respect of villas and fla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, as held by Hon'ble Supreme Court in the case of Larsen & Toubro (supra). Therefore, the demand prior to 01.07.2007 is not sustainable on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 Original Adjudicating Authority. We find much merit in the submissions of Department and therefore, remand these orders covered in these ..... X X X X Extracts X X X X X X X X Extracts X X X X
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