2020 (3) TMI 577

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....0.2007 to 31.03.2012 Construction of 489 EWS quarters at Vinayak Nagar, Gondarmau, Bhopal 30.12.2013 01.04.2012 to 31.03.2013 Construction of 489 EWS quarters at Vinayak Nagar, Gondarmau, Bhopal 22.04.2015 01.04.2013 to 31.03.2014 Construction of 489 EWS quarters at Vinayak Nagar, Gondarmau, Bhopal Construction of LIG houses at Salaiya Bhopal 3. Three show cause notices were issued to the appellant. The first show cause notice dated 18 April, 2013 was issued for the period 1 October, 2007 to 31 March, 2012. The second show cause notice dated 30 December, 2013 was issued for the period 1 April, 2012 to 31 March, 2013, while the third show cause notice dated 22 April, 2015 was issued for the period 1 April, 2013 to 31 March, 2014. The show cause notices mention that the Appellant is liable to pay service tax under the category of "construction of complex" services as defined under section 65 (30a) of the Finance Act, 1994 ^the Finance Act for construction of the quarters for Bhopal Development Authority. 4. The appellant submitted a detailed reply to the aforesaid show cause notices. 5. The Principal Commissioner has confirmed the demand of service ta....

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....ic applications or fittings and other similar services; or (c) Repair, alteration, renovation or restoration of, or similar services in relation to, residential complex; 11. The taxable service under section 65 (105) (zzzh) of the Finance Act means any service provided or to be provided to any person, by any other person, in relation to construction of complex; 12. "Residential Complex" has been defined under section 65(91a) of the Finance Act as follows:- "(91a) "residential complex" means any complex comprising of- (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanat....

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....ew of the matter, we are also not impressed with the plea made by the appellants that, from 1-6-2007, an activity of the one in question might be covered by the definition of 'works contract' in terms of the Explanation to section 65 (105)(zzzza) of the Finance Act, 1994 as amended. 'According to this Explanation, 'construction of a new residential complex or a part thereof' stands included within the scope of 'works contract'. But, here again, the definition of "residential complex" given under section 65(91a) of the Act has to be looked at. By no stretch of imagination can it be said that individual residential units were intended to be considered as a "residential complex or a part thereof." (emphasis supplied) 15. The Civil Appeal filed by the Department to assail the aforesaid order of the Tribunal was dismissed by the Supreme Court on 7 July, 2009. 16. The aforesaid decision of the Tribunal in Macro Marvel Projects was subsequently followed by the Tribunal in A.S. Sikarwar vs. Commissioner of Central Excise, Indore 2012 (28) STR 479 (Tri. - Del.) and the relevant portion of the order is quoted below:- "In this case, the Appellants have undertaken constructio....

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....upreme Court and the Hon'ble Supreme Court has dismissed the appeal filed as reported at 2012 (25) S.T.R. J514 (S.C.). So we consider that this matter is no longer res integra and service tax can be demanded under 65(105)(zzzh) only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where in one compound has many buildings, each having not more than 12 residential units. Therefore, we set aside the impugned order and allow the appeal." [emphasis supplied] 17. It also needs to be noticed that the same view was expressed by a Division Bench of this Tribunal in M/s.Lakhlan & Qureshi Construction Company vs. Commissioner of Central Excise and Service Tax, Jaipur-1 Service Tax Appeal No.55701 of 2014 decided on 14 October, 2019. 18. The Principal Commissioner has, however, not accepted the contention of the appellant and the aforesaid decisions have been distinguished. The relevant portions of the order of the Principal Commissioner are reproduced below:- "34. In the cases mentioned at Sl. No.2, 3 and 4 the Noticee has done construction of Duplex Houses at Riviera Towne and Amrawat Khurd. In this regard th....