TMI Blog2014 (10) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... complex or repair, alteration, renovation or restoration in relation to residential complex. Thus it hardly requires any further discussion to hold that the said component of impugned demand confirmed under the Construction of Complex Service is totally untenable. Renting of immovable property service - it is seen that at the time of adjudication, the had not claimed the exemption on the basis of what is stated at the time of appeal before the Tribunal. Regarding the contention in their appeal that vide their letter dated 12.10.2012 they had brought this to the notice of the adjudicating authority, we have perused that letter and it nowhere clearly brings out that the rental income was from for renting out the property for hostel/residen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... St/S/57977/2013 along their appeal No. ST/57373/2013-CU[DB] against Order-in-Original No. C/RPR/ST/24/2013 dated 31.01.2013 in terms of which demand of ₹ 49,64,881/- has been confirmed along with interest and penalties under sections 76, 77 and 78 of Finance Act, 1994 have also been imposed. It is seen that the adjudicating authority vide the aforesaid Order-in-Original has confirmed service tax demands of (i) ₹ 29,77,552/- under Construction of complex service, (ii) ₹ 8,11,725/- under renting of immovable property service and (iii) ₹ 11,75,604/- under the transport of goods by road service. The appellants have essentially contended that the demand confirmed under the construction of complex service is not sustainabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ols, acoustic applications or fittings and other similar services; or (c) repair, alteration, renovation or restoration of, or similar services in relation to, residential complex; Residential Complex is defined in Section 65 (91a) as under: (ii) Residential Complex means 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 within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... numbers is, quote University of Kusha Bhau Thakre Patrakarita and Jansanchaar at Khathadi Raipur , end-quote, and in the last column of the table against these serial numbers it is mentioned office building . Thus as per the OIO itself this amount of ₹ 5,48,37,243/- which is the total of the amounts mentioned against serial nos. 2f, 3d, 4d and 5c of the table given in para 10.5 relates to construction of office building. Therefore it is totally misconceived that this should be classified under Construction of Complex service. Accordingly confirmation of demand of ₹ 20,96,417/- in respect of the construction of office building for University of Kusha Bhau Thakre Patrakarita and Jansanchaar under construction of complex service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ities clearly incidental to the use of such vacant land; (c) land used for educational, sports, circus, entertainment and parking purposes; and (d) building used solely for residential purposes and buildings used for the purposes of accommodation , including hotels, hostels, boarding houses, holiday accommodation, tents, camping facilities. Thus, prima facie, as per the contention of the appellants the rental income in respect of which demand has been confirmed would not be liable to service tax as it cannot be said to have been rented for use in the course of furtherance of business or commerce. Also if the contention that the flats which were rented out were used either as hostel or as residential accommodation then also they wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However as the appellants are now contending that the entire freight amount received pertained to freight charges where the freight was less than ₹ 750/- for each trip, and hence would be exempt from service tax, the evidence produced by the appellants in the form of vouchers etc. would need to be examined/verified vis-`-vis their claim for such exemption and therefore this component of demand also needs to be looked afresh by the adjudicating authority. 7. In the light of the foregoing, we pass the following order: (i) We set aside the impugned order relating to the demand of ₹ 29,77,552/- confirmed under construction of complex service. (ii) As regards the demand of ₹ 8,11,725/- confirmed under renting of immov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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