2019 (10) TMI 1327 - AT - Service Tax

Tribunal rules in favor of appellant in appeal against demand for construction and site formation services

The Tribunal ruled in favor of the appellant in an appeal against a demand for 'Construction of Residential Complex Services' and 'Site Formation ... Construction of Residential Complexes - Site Formation Services - period from 16-6-2005 to 31-5-2007 - demand along with interest and penalty. Construction of Residential Complex Services - HELD THAT:- It is an admitted fact in the show cause notice that the appellant is constructing residential complexes along with material and the same is having merit classification under the category of ‘Works Contract Service’ as held by the Hon’ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] - it has been held that for the period prior to 1-6-2007, no demand can be raised under that category and thereafter the demand is to be confirmed under ‘Works Contract Service’. Admittedly, the show cause notice does not propose the levy of service tax under the ‘Works Contract Service’, therefore, the appellant is not liable to pay service tax under the category of Construction of Residential Complex Services - demand set aside. Site Formation Services - HELD THAT:- The appellant is constructing a road - As per the impugned order itself, the only reason to denial benefit was that the roads were not open to general public and thus not covered under public utility - Notification No. 17/2005-S.T., dated 7-6-2005 does not say that if it is not a public road then it is liable to be taxed. Therefore, the appellant is engaged in the construction of road and the same is exempt as per the Notification No. 17/2005-S.T., dated 7-6-2005, therefore, no service tax is payable by the appellant. Appeal allowed - decided in favor of appellant. Issues:Appeal against demand confirmed on 'Construction of Residential Complex Services' and 'Site Formation Services' for a specific period.Construction of Residential Complex Services:The appellant engaged in constructing residential complexes with material argued for Works Contract Service classification based on a Supreme Court ruling. The Tribunal found no proposal in the show cause notice for service tax under Works Contract Service, thus holding the appellant not liable for payment. The demand of Rs. 29,15,465/- was set aside.Site Formation Services:The appellant's construction of roads was considered under Site Formation Services, with the impugned order denying benefit due to roads not being open to the general public. The Tribunal noted that the exemption Notification did not require roads to be public for tax exemption. Consequently, the appellant was found engaged in road construction exempt from service tax under the Notification. The demand was dropped, and the impugned order was set aside.The Tribunal's decision favored the appellant, setting aside the demand confirmed against them for both 'Construction of Residential Complex Services' and 'Site Formation Services.' The appellant was granted consequential relief.