TaxTMI 
TaxTMI 
2010 (6) TMI 349
X X X X Extracts X X X X
X X X X Extracts X X X X
....applicable rate under Section 75 of the Finance Act, 1994; (iii) Penalty of Rs. 200/- for every day during the failure to pay service tax under Section 76 of the Act; (iv) Penalty of Rs. 1000/- under Section 77 of the Act; and (v) Penalty of Rs. 3,88,98,097/- under Section 78 of the Act. 2. The brief facts that arise for consideration are that the applicant/appellant herein was engaged in the Construction of Residential complex in addition to Construction of Commercial Complex. The Revenue is of the view that the activity undertaken by the applicant falls under the category of 'Construction of Complex Service'. Investigation was carried out by the departmental official....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ission that the entire services rendered by the appellant would fall under the category of 'Works Contract Services' as has been held by this Bench in the case of Cemex Engineers v. Commissioner of Service Tax, Cochin [2010 (17) S.T.R. 534 (Tri.-Bang.)]. It is the submission that the appellant is the owner of the land and has engaged contractors for developing land and construction of residential complex and commercial complex. It is the submission that the appellant being an owner of the land and it cannot be said that the appellant is the contractor providing services of construction of residential complex or work contract to himself. He submits that this Bench in the case of K. Manmohan Mally v. Commissioner of Central Excise (Ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ip of the property passes on to ultimate purchaser only when there is a Deed of Sale. Till the ownership is passed on under sale deed, the ownership despite there being an agreement of sale, rests with the appellant. It is the submission that the lower authorities have considered the value of the land and also the cost of registration and stamp duty for calculation which is incorrect. 6. We have carefully considered the submissions made by both sides and perused the records. The undisputed facts are that the appellant is an owner of the land where residential complex or commercial complex are being constructed. It is also undisputed that the appellant had entered in agreement for the sale of undivided share of land and also for the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ces, I am of the view that the entire services provided by the assessee in relation to the construction of residential complex "Marina Majestic" have to be classified under "Construction of Complex Services" and they are not eligible to change the classification of services under "Works Contract Services" from 1-6-2007. Therefore they are not eligible to make payment of Service Tax under Work Contract (composition Scheme for Payment of Service Tax) Rules, 2007." It can be seen from the above reproduced paragraph in the order-in-original that the adjudicating authority has not given a valid reason for dismissing the contention of the appellants though the activities undertaken by them would fall under 'Works Contract Services' wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the nature of 'self-service' and consequently would not attract service tax. Further, if the ultimate owner enters into a contract for construction of a residential complex with a promoter/builder/developer, who himself provides service of design, planning and construction; and after such construction the ultimate owner receives such property for his personal use, then such activity would not be subjected to service tax, because this case would fall under the exclusion provided in the definition of residential complex'. However, in both these situations, if services of any person like contractor, designer or a similar service provider are received, then such a person would be liable to pay service tax." From a plain reading ....