TMI Blog2023 (3) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... a is covered by the definition Personal Use in the explanation to definition of residential complex service, the other aspects need not be considered. Appeal allowed - decided in favour of appellant. - Service Tax Appeal No. 12013 of 2013-DB - Final Order No. A/10277/2023 - Dated:- 7-2-2023 - Hon ble Mr. Raju, Member (Technical) And Hon ble Mr. Somesh Arora (Judicial) For the Appellant : Shri Jigar Shah Amber Kumrawat (Advocate) For the Respondent : Shri G. Kirupanandan, Assistant Commissioner (Authorized Representative) ORDER RAJU 1. This appeal has been filed by the appellant against the demand of service tax on construction of complex service. 2. Learned counsel pointed out that the appellants constructed houses for Essar Limited. The said houses were used by Essar Limited for their own staff. He argued that the service provided by them is not covered under the construction of complex service, since the residential construction was for personal use. He relied on the following decisions: CR Patel vide Final Order No. A/10185/2023 dated 31.01.2023. Khurana Engineering Ltd. Vs CCE 2011 (21) STR 115 (T-Ahm) Shri S. Kadirvel Vs CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: Works contract , for the purposes of section 65(105)(zzzza), means a contract wherein,- (i) transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and (ii) such contract is for the purposes of carrying out, (a) erection, commissioning or installation of plant, machinery, equipment or structures, whether pre-fabricated or otherwise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or (b) construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or (c) construction of a new residential complex or a part thereof; or (d) completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to (b) and (c); or (e) turnkey projects including engineeri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... built are intended for the personal use of the GOI which includes promoting the use of complex as residence by other persons (i.e. the Government officers or the Ministers). As such the GOI is the service receiver and NBCC is providing services directly to the GOI for its personal use. Therefore, as for the instant arrangement between Ministry of Urban Development and NBCC is concerned, the Service Tax is not leviable. It may, however, be pointed out that if the NBCC, being a party to a direct contract with GOI, engages a sub-contractor for carrying out the whole or part of the construction, then the sub-contractor would be liable to pay Service Tax as in that case, NBCC would be the service receiver and the construction would not be for their personal use. It can be seen that if the land owner enters into a contract with a promoter/builder/developer who himself provided service of design, planning and construction and if the property issued for personal use then such activity would not be subject to service tax. It is quite clear that C.B.E. C. also has clarified that in cases like this, service tax need not be paid by the builder/developer who has constructed the complex. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere a similar case has been dealt with by the Tribunal. Following the decision of the Tribunal in Nithesh Estates Ltd. (supra), we find no reason to interfere with the impugned orders which are sustained and the appeals filed by Revenue are rejected. 4.4 Similar view has also been taken in the case of Khurana Engineering-2010 (11) TMI 81 CESTAT Ahmd, wherein following has been observed: 2. Learned advocate on behalf of the appellants, first of all submitted that the service was provided by the appellant to Govt. of India for providing the same as residential accommodation for the employees of the Income Tax department. He drew our attention to the definition of the construction of complex services given under the clause (30a) of Section 65 to submit that personal use, according to the definition includes permitting the complex for use as residence by another person on rent or without consideration. In view of the definition of ‗Personal Use in the definition of ‗Construction of Complex services, the services provided by the appellant is covered by exclusion, which provides that definition of service does not include the complex which is constructed by a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r starts with words Tenders are invited on behalf of the President of India . Further, we also find that the guarantee executed by the contractor and agreement entered by the contractor have been accepted by CPWD for and on behalf of the President of India. Learned DR also fairly admitted that he has not got any clarification from the department as to whether there is any evidence to show that CPWD and Income Tax departments are separate entities and have to be treated as separate entities. It is well known that various departments of Govt., of India act on behalf of the President of India and therefore, it cannot be said that CPWD can be equated with NBCC which is a Public Sector under taking. It is also well settled that Public Sector undertakings are not considered as Govt., departments and also cannot be considered as STATE . Further, learned DR also could not show whether there was any agreement between Income tax department and CPWD for the purpose of construction of residential complex. Invariably when two parties are independent entities, there would be an agreement. Absence of any agreement between CPWD and Income tax department also supports the case of the learned advo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en for Personal use in the definition. In this case the CPWD has engaged the appellant for construction of residential complex for giving it on rent to the employees of Income Tax department and therefore this service cannot be included in the definition of residential complex services. It is basically the case of one department taking the help of another department to get the work done basically because of specialization of that department in preparing documents and get the work executed. 3. We also find alternative submissions made by the learned advocate are to be sustained. The first alternative submission made was that the show cause notice was issued on 4-10-2007 whereas, the service tax was payable for the period from 16-6-2005 to 30-7-2007 and therefore, a portion of the demand is time barred. Even if a view is taken that CPWD is to be treated as separate entity, in our opinion appellant would be justified to entertain a belief that CPWD and Income Tax department are to be treated as part of the Govt. of India and therefore, services provide by him would not be liable to service tax. Further, as submitted by the appellant in his submission, the agreement also provide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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