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2024 (12) TMI 945
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....ed service under Section 66E(b) of the Finance Act, 1994. The Adjudicating Authority had decided six SCNs covering the period from 01.10.2006 to 31.03.2015, totally amounting to Rs. 3,32,29,926/-, wherein, the demands were raised for different periods under different category of service. The breakup of the SCNs, nature of services proposed and amount involved are indicated below:- Sl No. SCN No. & Date Demand raised under Taxable Service ST Demanded (in Rs. ) Penal Provisions invoked: Sections Period covered in the notice 1 V/15/73/2012- Adj dt. 24.04.2012 Construction of Complex Service 10,04,342 76, 78, 77(1), 77(2) October 2006 to September 2011 Works Contract Service 1,94,42,189 Transport of Goods by Road Service 4,43,905 2 V/15/223/2012- Adj dt. 22.11.2012 OIO passed no. VIZ-STX-001- COM-11-14 dt. 17.02.2014 Works Contract Service 71,90,961 76, 77(1)(a) & 77(2) 2011-12 (Adjudicated vide OIO No.11/2014 dt. 17.02.2014) Transport of Goods by Road Service 9,957 3 V/15/14/2014- Adj dt. 21.05.2014 Works Contract Service 45,10,197 76, 77(1), 77(2) 01.04.12 to 30.06.12 4 V/15/201/2014- Adj ....
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.... Certificate (OC), the appellant had not furnished any documentary evidence in support of their claim. At para 61.2 of OIO, he made an observation that the appellant's contention that the flats and houses were sold post receipt of OC could be accepted if no amount was collected from the prospective buyer before the grant of Completion Certificate, relying on the judgment of Hon'ble High Court of Karnataka in the case of Confederation of Real Estate Developers' Association of India Vs Union of India [2015 (37) STR 211 (Kar)]. 4. On the issue of liability of Service Tax on 'Transportation of Goods by Road Service' during the period 01.10.2006 to September, 2011, he confirmed the demand of Rs. 4,43,905/- under GTA Service. Therefore, in short, the Adjudicating Authority has confirmed the demand of Service Tax under the category of 'Construction of Complex Service' and 'GTA Service'. Overall, out of total demand of Rs. 3,27,86,021/-, demand of Rs. 1,20,74,757/- was confirmed and the remaining amount of Rs. 2,07,11,264/- has been dropped. The Adjudicating Authority has also appropriated Service Tax amount of Rs. 17,98,255/-. 5. The factual matrix of the case is that the appellant ....
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....y services under 'Works Contract Service' and levy tax on 40% of the total consideration received as 'original works' Construction of Complex Service as defined under Section 66E(b) V/15/31/2015-Adj dt. 01.04.2015 April 2013 to March 2014 Proposed to classify services under 'Works Contract Service' and levy tax on 40% of the total consideration received as 'original works' Construction of Complex Service as defined under Section 66E(b) V/15/16/2016-Adj dt. 16.03.2016 April 2014 to March 2015 Proposed to classify services under 'Works Contract Service' and levy tax on 40% of the total consideration received as 'original works' Construction of Complex Service as defined under Section 66E(b) 7. Essentially, while the Adjudicating Authority had held that services would not fall under the category of 'Works Contract Service', and they would be taxable under the category of 'Construction of Complex Service', learned Advocate has relied on various case laws in support that demand cannot be confirmed under any other category other than what has been specified in the SCN, which are as follows:- i) Raghava Estates & Properties Ltd Vs CCT, Guntur [2024 (....
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....cation 25/2012-ST as - any complex comprising of a building/ buildings having more than one single residential unit. He has relied on the following case laws in support of his argument:- a) M/s Macro Marvel Projects Ltd Vs CST, Chennai [2008 (12) STR 603 (Tri-Chennai)] b) CCT, Hyderabad-GST Vs CSK Realtors Ltd [2024 (3) TMI 351 - CESTAT Hyderabad] c) CCE & ST Vs Alliance Infrastructure Projects Pvt Ltd [2021 (11) TMI 282 (Kar-HC)] d) Baba Construction Pvt Ltd Vs CCE & ST, Ghaziabad [2018 (15) GSTL 345 (Tri-Allahabad)] 10. In respect of liability of Service Tax on Fortune Heights Apartments, where they had constructed 220 flats, they have already submitted four OCs issued by M/s Ravi Kumar Enterprises, Consultant Civil Engineers, Approved Valuers & Licensed Engineers in GVMC & Visakhapatnam Urban Development Authority (VUDA) showing the details of the flats which were completed by 31.12.2010, 31.03.2011, 30.06.2011 & 15.02.2012 and the OC dt. 03.03.2012 issued by the Commissioner of GVMC. The receipt of these four OCs has been admitted by the Adjudicating Authority at para 14 of the OIO dt. 27.07.2017. Appellant has also furnished details of th....
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....rther, by way of additional submissions, they have again reiterated that, as held by the Hon'ble Supreme Court in the case of Larsen & Toubro Ltd [2015 (39) STR 913 (SC)] and also in view of Section 65(105)(zzzza) of the Finance Act, 1994, wherein, under sub-clause (ii), it is provided that 'Construction of Residential Complex' or a part thereof is taxable as 'Works Contract Service', Service Tax on villas and residential flats w.e.f. 01.07.2007 only in respect of composite contracts providing services including transfer of property in goods, cannot be demanded under the category of 'Construction of Residential Complex Service'. He has relied on the following case laws:- a) URC Constructions Pvt Ltd Vs CCGST & CE, Salem [2024 (7) TMI 106 - CESTAT Chennai] b) Raaga Mayuri Builders Pvt Ltd Vs CCT, Tirupathi [2023 (12) TMI 750 - CESTAT Hyderabad DB] c) Sai Teja Constructions Vs CST, Hyderabad [2019 (7) TMI 575 - CESTAT Hyderabad DB] 13. He has further clarified that the amendment brought in Section 65(105)(zzzh) would also not make them liable for the Service Tax as it covers only service simpliciter and not applicable to composite contracts. He has relie....
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....Rule 2A the value adopted for the purpose of payment of VAT or Sales Tax shall be taken as value of property in goods involved, whereas, the Adjudicating Authority had observed that the assessee had not provided the proof of payment of VAT/ Sales Tax on material value shown by them. Further, the composition scheme is not applicable automatically but needs to be opted by the assessee subject to fulfillment of conditions laid therein. 19. Essentially, the Department is not opposing the classification of the services under 'Works Contract Service' and are only appealing the extension of abatement given to the assessee by the Adjudicating Authority on the ground that benefit of composition scheme cannot be extended suo moto. 20. Heard both the sides and perused the documents. Further, as all these appeals are having common issue, we intend to take up all these appeals together for the purpose of disposal. 21. It is an admitted fact that the nature of service being provided by the assessee was more appropriately classifiable under 'Works Contract Service' for the period prior to 01.04.2012 as also during the subsequent period. This is also clear from the department's stand in A....
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....was not proposed in the SCN and therefore, on that count also, demand is not sustainable as held in various judicial pronouncements, cited supra. It is also observed that in the first round of appeal, the Tribunal had, while remanding the matter to the Original Adjudicating Authority, had invited his attention to Circular No. 151/2/2012-ST dt. 10.02.2012, which clarified about non-leviability of Service Tax for the period prior to 01.07.2010 in respect of construction services provided by the builder/ developer in terms of Board Circular No.108/02/2009-ST dt. 29.01.2009. Whereas, for the period after 01.07.2010, the construction services provided by the builder/ developer are taxable in case any part of the payment/ development rights of the plan was received by the developer before the issuance of completion certificate. Therefore, the principles are very clear that if any payment has been received from the customer or development right has been received from the land owner then when the construction service is provided to both the land owner and the buyer, Service Tax would be leviable in case advance development rights have been received. 24. Further, there are certain submis....