TaxTMI 
TaxTMI 
2023 (2) TMI 608
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....4 lacs deposited by the appellant. Penalty and interest have also been imposed upon the appellant. 2. The order was passed by the Commissioner pursuant to the issue of a show cause notice dated 05.05.2011 for the period November 2006 to September 2010. The show cause notice mentions that though the appellant was engaged in the activity of construction of residential apartments classified under the taxable category of 'construction of a new residential complex', as defined under section 65(30a)(a) of the Finance Act and made taxable under section 65(105)(zzzh) of the Finance Act, but the appellant did not discharge the service tax liability under this category and had also irregularly availed CENVAT credit. 3. The appellant filed a reply to the show cause notice contending that the services rendered by the appellant would not be classifiable under 'construction of a new residential complex' as defined under section 65(30a)(a) of the Finance Act and in any case the service would fall under works contract service, which become taxable w.e.f. 01.06.2007 and the appellant had discharged service tax liability under this category. In this regard the appellant placed reliance on a Ci....
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....registered themselves under the category of Construction of Complex Service, made payment under the same accounting head through GAR-7 Challan and filed the returns also under Construction of Complex Service only. Therefore, Noticees contention of classifying their services under Works Contract Service at a later date is against the stipulated norms on the basis of the above discussions. 68. in view of the above, it is clear the M/s. SPLDEV was engaged in construction of a residential complex which was classifiable under the category of Construction of Residential Complex Service defined under Section 65(30a) of the Finance Act, 1994. Further, the nature of work between the prospective buyer and the developers was taxable under Section 65(105)(zzzh) of the Finance Act, 1994. 69. The worksheets furnished by the Noticee revealed that, M/s. SPLDEV had provided the construction of residential complex service and had received an amount of Rs. 51, 17, 02,914/- during the period covered in the show cause notice. The service tax liability on this value works out to Rs. 5,56,15,882/-." (emphasis supplied) 6. In regard to the CENVAT credit irregularly availed and util....
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....ve, proposed to classify services rendered by the appellant under 'construction of a new residential complex' as defined under section 65(30a)(a) of the Finance Act and made taxable under section 65(105)(zzzh) of the Finance Act. The demand was also confirmed by the Commissioner under the said category of service. 9. The order passed by the Commissioner was assailed by the appellant in this appeal and earlier, the Tribunal, by a decision dated 07.12.2013, set aside the order dated 30.04.2012 passed by the Commissioner and allowed the appeal. The Tribunal recorded a finding that w.e.f. 01.06.2007 the nature of service provided by the appellant would be leviable to service tax under works contract service even though the appellant may have obtained registration under 'construction of complex service' and deposited the tax under the said category. The confirmation of demand of service tax was, accordingly, set aside and the appeal was allowed. 10. The department filed Civil Appeal before the Supreme Court, being Civil Appeal No. 2931 of 2015 (Commissioner of Service Tax Bangalore vs. SPL Developers Pvt. Ltd.). This appeal was allowed by the Supreme Court by judgment and order da....
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....impugned order that the appellant had not produced copies of the invoices and bills on which CENVAT credit was availed is incorrect as the statement containing the details of the CENVAT credit availed by the appellant and the CENVAT credit ledger account were furnished by the appellant and the appellant had also furnished copies of tax invoices issued by M/s. Construction Company Limited Najarjuna, which covered major portion of the CENVAT credit. In reply to the show cause notice, the appellant also enclosed, as Annexure-5, a statement containing details of the CENVAT credit taken along with the copies of the invoices which clearly demonstrate that CENVAT credit had not been irregularly availed by the appellant; (iii) The appellant had correctly utilized CENVAT credit of Rs. 1,22,53,815/-; and (iv) There is no suppression of facts with intent to evade payment of service tax and so neither the extended period of limitation could have been invoked nor penalty could have been imposed. In this connection, learned representative pointed out that since the show cause notice was issued on 05.05.2011 covering the period from 01.11.2026 to 30.09.2010, the period upto 31.0....
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....r works contract service, then mere registration under a different category and payment of service tax under that category would not be sufficient to hold that the service was actually rendered under that category. The reasoning adopted by the Commissioner, therefore, cannot be sustained. The demand of service tax, therefore, would not sustain. 15. The next issue that requires to be considered is as to whether the appellant had correctly availed CENVAT credit of Rs. 1.73 crores. 16. In this connection, it needs to be noted that in the reply filed to the show cause notice, the appellant had categorically stated that the allegation made that it had not produced copies of invoices and bills on which CENVAT credit was availed was not correct. The appellant specifically stated that the statement containing details of the CENVAT credit availed and the CENVAT credit ledger account were furnished to the investigating team prior to the issue of the show cause notice. The appellant also specifically stated that it had also furnished copies of the tax invoices issued by M/s. Najarjuna Construction Company Limited, which invoices covered major portion of the CENVAT credit. According to t....
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....nnexure was not enclosed by the appellant in reply to the show cause notice. The said affidavit also states the Annexure-5 enclosed by the appellant before the Tribunal only contains a summary of the CENVAT credit availed during the period from March 2008 and August 2010 and the numbers and dates of the relevant invoices without enclosing the invoices. 19. From these facts stated in the affidavit, it has been contended by the learned authorised representative appearing for the department that the appellant had not produced the relevant invoices before the adjudicating authority. 20. According to the learned representative for the appellant, the invoices were infact supplied to the department with Annexure-5, as is clear from the reply submitted by the appellant. Learned representative pointed out that these invoices have not been enclosed in the Appeal Memo as they are very bulky. 21. What is relevant to point out is that a Certificate dated 23.05.2013 was also issued by the Chartered Accountant. The said Certificate mentions that the appellant had availed CENVAT credit as per rule 7 of the 2004 Rules and that the CENVAT credit had been availed basis the input service invo....