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of <h1>Appellant not liable for service tax on construction services. Order set aside. Penalties nullified.</h1> <h3>Shri Prakash Wadhwani Versus Commissioner, Central Excise, Customs and Service Tax, Bhopal</h3> Shri Prakash Wadhwani Versus Commissioner, Central Excise, Customs and Service Tax, Bhopal - TMI Issues Involved:1. Liability of service tax under the category of 'construction of complex' services.2. Levy of penalty and interest.3. Invocation of the extended period of limitation.Issue-wise Detailed Analysis:1. Liability of Service Tax under 'Construction of Complex' Services:The primary issue in this appeal was whether the appellant was liable to pay service tax for the construction of 489 EWS quarters at Vinayak Nagar, Bhopal for the period 1 April 2012 to 31 March 2013 under the category of 'construction of complex' services as defined under section 65 (30a) of the Finance Act, 1994. The appellant contended that the buildings constructed did not have more than 12 residential units, which is a prerequisite for being classified as a 'residential complex' under section 65(91a) of the Finance Act. The Tribunal referred to the definition of 'construction of complex' and 'residential complex' and concluded that independent buildings having twelve or fewer residential units do not fall under the definition of 'residential complex.' Citing previous judgments, such as Macro Marvel Projects Ltd. v. Commissioner of Service Tax, Chennai, and A.S. Sikarwar vs. Commissioner of Central Excise, Indore, the Tribunal held that the appellant's activity did not qualify as 'construction of complex' and thus was not liable for service tax. The Tribunal rejected the Principal Commissioner's reasoning and reliance on the Madhukar Mittal case, stating it was misplaced.2. Levy of Penalty and Interest:The appellant argued that the Principal Commissioner could not have levied penalty and interest. Given that the primary demand for service tax was set aside, the Tribunal did not find it necessary to delve deeply into the issue of penalty and interest. The setting aside of the service tax demand inherently nullified the associated penalties and interest.3. Invocation of the Extended Period of Limitation:The appellant contended that the extended period of limitation could not have been invoked in this case. Since the Tribunal concluded that no service tax was payable under the 'construction of complex' services, the question of invoking the extended period of limitation became moot. The Tribunal did not provide a detailed analysis on this issue, as the primary demand itself was not sustainable.Conclusion:The Tribunal concluded that the appellant was not liable to pay service tax under 'construction of complex' services for the period in question. Consequently, the order confirming the demand of service tax was set aside, and the appeal was allowed. The Tribunal's decision was based on the interpretation of the definitions of 'construction of complex' and 'residential complex' under the Finance Act, supported by previous judicial precedents. The associated penalties and interest were also nullified as a result of the primary demand being set aside.
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