2008 (7) TMI 196

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rtered Accountant appeared on behalf of the appellants and Mr. Hitesh Shah learned SDR for the Revenue. 3. We heard both sides. 4. The appellant M/s. Rohan Builders are providers of service under the category of construction of residential complexes. The departmental officers investigated into the affairs of the appellant. It was revealed that the appellant had not paid the service tax due. Therefore, proceedings were initiated against the appellants. The Commissioner after giving a personal hearing confirmed that a demand of Rs. 1,26,11,732/- for the period from June 2005 to December 2005 under the provisions of Section 73 (1) of the Act. In fact an amount of Rs. 1,14,45,847/- in cash and Rs. 11,65,885/- in Cenvat credit account had been....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....6, 77 and 78 was challenged on the ground that the appellant had deposited the service tax before the issue of show cause notice. Therefore, it was urged that no penalties can be levied in terms of Section 73 (3) of the Finance. It was pleaded that there was no mens-rea on the part of the appellant and therefore, no penalties can be levied. The interest under Section 75 was also challenged on ground that the appellants are not liable to pay service tax. The construction is for "personal use" of the flat buyer (service receiver), which is as per the definition of "Residential Complex" as per Sec.65 (91a) of the Finance Act 1994. Since the buyer doesn't avail the services for "residential complex" meaning thereby-a minimum 12 units, the ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... defined in Section 65 (105) (zzzza) r.w.s 65A and not under construction of complex service as defined u/s 65 (105) (zzzh). -Diebold Systems P. Ltd. Vs. CCEx., 2008-TIOL-489-CESTAT-MAD -L&T Ltd. Vs. CCEx., 2007 TIOL 744 (Ahd-CESTAT) -M/s. Blue Star Ltd. Vs. CCE, 2006-TIOL-1681-BANG.-CESTAT. -M/s. BSBK P. Ltd. 2006 (77) RLT 479 (CESTAT-Del.) = (2007) 5 STR 124 -Glaxo Smithline Vs. CCE (2005) 1 STT 37 (Mum.) -Dr. Lal Path Lab Vs. Comm. 2006 (77) RLT 135 (CETAT-Del.) = (2006) 4 STR 527 (Delhi-CESTAT) 6. The learned SDR referring to the impugned order stated that in the present case, the appellants are in fact the service providers. They have engaged in the construction of residential complex in terms of the definition given in the Fina....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....at. It is very clear that the first party who is the appellant has to develop the flats. The development includes the construction of residential complex. It can be seen very clearly from the said agreement. Therefore, the contention of the appellant saying that he is not the service provider he is only selling the property is not correct. Before selling the property the construction activity has to be undertaken. He may be employing very many contractors for the construction but that is not the point. The point is that by employing various contractors he is not giving the entire work to one single contractor in which case in terms of the Board's clarification, the single contractor would be liable for payment of service tax. Here the a....