2023 (1) TMI 1332

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.... or roads was excluded categorically from the definition of works contract Section 65 (105) (zzzza) and therefore was not a taxable activity. He relied on the Circular issued by CBEC. He relied on the Circular B2/8/2004-TRU dated 10.09.2004 (Para 13.4), Circular No. B1/6/2005-TRU dated 27.07.2005 (Para 14.4 to 14.6) and Circular No. 110/4/2009-ST dated 23.02.2009 (Para 2 and 3) reads as under: Circular B2/8/2004-TRU dated 10.09.2004 ".............. 13.4 The definition of service specifically excludes construction of roads, airports, railway, transport terminals, bridge, tunnel, long distance pipelines and dams. In this regard it is clarified that any pipeline other than those running within an industrial and commercial establishment such as a factory, refinery and similar industrial establishments are long distance pipelines. Thus, construction of pipeline running within such an industrial and commercial establishment is within the scope of the levy. .............." Circular No. B1/6/2005-TRU dated 27.07.2005 "...................... 14.4 At present, services rendered for construction of commercial or industrial building....

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....road surface (graveled road to metalled road/ metalled road to blacktopped/blacktopped to concrete etc. ................" 3. Learned Authorized Representative reiterates the findings of the impugned order. 4. We have considered the rival submissions. 5. It is apparent from the above Circular that construction of road is excluded from service tax net. Circular No. B1/6/2005-TRU dated 27.07.2005 clarifies as follows" "14.4 At present, services rendered for construction of commercial or industrial buildings is taxable. However, construction of roads is not liable to service tax. A point has been raised that if a commercial complex is constructed which also contains roads whether the value of construction of roads would be liable to service tax. 14.5 If the contract for construction of commercial complex is a single contract and the construction of road is not recognized as a separate activity as per the contract, then the service tax would be leviable on the gross amount charged for construction including the value of construction of roads." In light of above Circulars, it is apparent that the activity of construction of roads is beyond the servi....

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.... 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. Explanation - For the removal of doubts, it is hereby declared that for the purposes of this clause, - (a) "personal use" includes permitting the complex for use as residence by another person on rent or without consideration; (b) "residential unit" means a single house or a single apartment intended for use as a place of residence;" 7.1 In this case there is no dispute and it clearly emerges that the residential complex was built for M/s. ITC Ltd. and appellant was the main contractor. Appellant had appointed sub-contractors all of whom have paid the tax as required under the law. The question that arises is whether the appellant is liable to pay service tax in respect of the complex built for ITC. From the definition it is quite clear that if the complex is constructed by a person directly engaging any other person for design or planning or layout and such complex is intended for pers....

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....n, there is no liability on the appellant to pay the service tax. 8. Even though we have held in favour of the appellant on merits, the facts and circumstances in this case would show that appellant could have entertained a bona fide belief and therefore extended period could not have been invoked. C.B.E.&C. has issued a clarification in 2010 and appellants had written a letter in October, 2008 to C.B.E.&C. seeking clarification wherein they had given the details of agreement also. If the Board takes a view after a period of two years just before the amendment and also if that view is applicable to the facts of this case before us, we cannot find fault with the appellant for entertaining such a belief that they are not liable to pay tax. Since the entire demand is beyond the normal period of limitation, the appellants succeed on the ground of limitation also." In light of above, it is apparent that when the residential complex is built for self use then it remains outside the service tax net. In light of above decisions, the demand on the construction of road and residential premises cannot be sustained and the same is set aside. 8. Learned counsel pointed that the s....