TaxTMI 
TaxTMI 
2026 (3) TMI 844
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....ance and repairs of those buildings and has been discharging service tax on various services; also availing cenvat credit on the service tax paid on various inputs and input services. Based on the Circular No.108/02/2009 dated 29.01.2009, the appellant stopped discharging service tax and the same was intimated to the Revenue vide their letter dated 04.02.2009. However, Revenue issued show-cause notices stating that the Board Circular was not applicable to the appellant in the facts and circumstances discussed in the notice and accordingly, the Commissioner in the impugned orders held that the appellant is liable to discharge service tax during the disputed period and confirmed the demand of Rs.7,97,09,746/- and Rs.2,78,73,456/- respectively along with interest and imposed penalties under Section 76 and Section 78 of the Finance Act, 1994. Aggrieved by these orders the appellant is in appeal before us. 3. The Learned Counsel submits that the appellant is engaged in the activity of Construction of Commercial or Industrial Buildings and Construction of Residential Buildings on works contract basis and is registered with the service tax department under the taxable services of const....
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....bay Well Print Inks Pvt. Ltd. vs. Commissioner of C.Ex. & ST: 2016 (45) STR 418 (Tri.-Mumbai) whereby the Hon'ble Tribunal observed that Circular No.962/05/2012 -CX. dated 28.03.2012 makes it very clear that the payment of arrears is made for a demand under Section 73 of the Finance Act, 1994, then the restriction under Rule 3(4) of the Cenvat Credit Rules, 2014 shall not apply and the credit can be duly utilized for making the payment. Further, it is submitted that interest is not liable to be paid since interest is only compensatory in nature and the demand of duty itself is not sustainable in terms of the submissions made above, the interest cannot be justified. In addition, penalty also cannot be sustained in view of the fact that there is no suppression or fraud held against the appellant. 4. The learned Authorised Representative (AR) for the Revenue reiterated the findings of the Commissioner in the impugned orders and the appellant is liable to discharge service tax for the reasons discussed in the impugned orders. Further, it is submitted that since the appellant has availed cenvat credit and has discharged duty liability utilizing cenvat credit, they cannot claim that t....
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....ce Act, 1994, so as to bring within the purview of the term 'taxable service', a service provided or to be provided to any person by any other person "in relation to construction of complex". The expression "construction of complex" was defined in sub-section (30a) of Section 65 and accordingly this expression covered - "(a) construction of a new residential complex or a part thereof or (b) completion of finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services; or (c) repair, alteration, renovation or restoration of, or similar services in relation to, residential complex". The expression residential complex was defined in Section 65(91a) of the Finance Act, 1994 as 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....
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.... on behalf of the prospective buyer by the builder or the person authorized by the builder before grant of completion certificate by the authority competent to issue such certificate under any law for the time being in force) shall be deemed to be service provided by the builder to the buyer." Thus, in terms of this explanation, when a builder/promoter/ developer got a residential complex constructed for his customers with whom he had individually entered into agreements, in terms of which the prospective customers were required to make payments for the residential units to be constructed in instalments and the possession of the residential units was to be given to the customers on completion of the complex and full payment having been made, the builder/promoter/developer was to be treated as a deemed provider of construction of residential complex service to his customers. Thus, by this explanation, the scope of the Clause (zzzh) of Section 65(105) has been expanded and this amendment by adding an explanation has been held by this Tribunal in the case of CCE, Chandigarh v. U.B. Construction (P) Ltd. (supra) as prospective amendment. In this regard, para 5 of this judgment....
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....0, and therefore, it has to be held that such contracts were not covered by Section 65(105)(zzzh) during the period prior to 1-7-2010." (n) To sum up, as far as construction of 'residential complexes' by the builders are concerned : (i) Prior to 1-6-2007, if it is a composite works contract, no Service Tax is leviable in view of the judgment of the Hon'ble Apex Court in the case of Larsen & Toubro (supra). (ii) After 1-6-2007, it is chargeable as 'works contract' only if it is a composite contract and under 'construction of complex services' if it is a service simpliciter. (iii) However, after 1-6-2007 but prior to 1-7-2010, whether it is a service simpliciter or a works contract, if the service is rendered prior to issue of completion certificate and transfer to the customer, it is not taxable being in the nature of self service. (iv) Further, whenever the service is rendered for completion or construction of a flat for personal use of the service recipient, no Service Tax is payable in view of the exclusion in the definition of residential complex service. (v) After 1-7-2010, Service Tax is chargeable under the head of 'constr....