TMI Blog2024 (2) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordance with the law proposed for such classification when two equally applicable classification exist, the differential demand also does not survive amounting to Rs. 17,84,97,162/-. Demand of Rs. 3,98,08,809/- under Section 73A - HELD THAT:- The Learned Commissioner has rightly gone into details and after going through the reconciliation rightly held that there is no case made out for non-payment of tax collected but not paid under Section 73A. Thus, there is no error in dropping the said demand also. It is further found that the only demand confirmed in the Order-in-Original Rs. 21,029/- under GTA service, which was not an issue and has not been interfered with. The same stands confirmed and appropriated in accordance with the law. There are no merits in this appeal by Revenue, accordingly the same is dismissed. - HON BLE Mr. ANIL CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE Mr. A. K. JYOTISHI , MEMBER ( TECHNICAL ) Shri A Rangadham , Authorised Representative for the Appellant Shri S Sunil , Advocate Shri CH Nageswara Rao , Consultant for the Respondent ORDER [ ORDER PER : ANIL CHOUDHARY ] This appeal by revenue is by way of 2nd roun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the Appellant have paid the service tax in normal course, or non-initiation of demand. Whether the Appellant had collected the tax or not. Whether the demand made under section 73A is part of the other demands on over and above these demands. The assessee needs to provide proper worksheet and also there is a need for proper consideration and clarity. Accordingly the Tribunal remanded the matter to the Original Adjudicating Authority for fresh adjudication. 5. The Learned Commissioner took notice that the Tribunal have already held that the service in question is classifiable under the category of construction of residential complex, which is taxable only from 01.07.2010. Further, as held by the Tribunal, tax was chargeable only on transaction involved between the service provider and the prospective customer. Further there was no demand on the constructed area shared with the land owner. 6. With respect to the demand of ₹ 20.18 crores on the gross value of Rs.181,91,44,859/- for the period 01.06.2007 to 30.09.2011, the Commissioner observed that it is on account of 2 reasons: (a) the demand has been wrongly classified for the activity of construction of residen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s transferred to other service provider i.e M/s R.D.B. Legend M/s R.D.B. Legend 36,62,196/- TOTAL 65,23,089/- 8. From the aforementioned facts the Learned Commissioner observed that it is very clear that service tax was rightly paid by the assessee for the projects undertaken and executed for the period from 16.06.2005 to 30.09.2011. He further observed, that it appears that the SCN was issued inadvertently by calculating the service tax on the values pertaining to the projects, below 12 units, projects not yet commenced during the relevant period and projects transferred to other service provider RDB Legend Hyderabad. Further observed that the assessee has submitted challans in support of payment of Rs. 3,32,85,720/. Thus, the demand was dropped, further held there is no question of penalty. 9. It was further observed that the assessee have deposited the service tax payable before the initiation of demand. Further observed that the show cause notice appears to be erroneous/deceptive. He also observed that tax lies under the head construction of residential complex service brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC, CE and ST Visakhapatnam-I Vs Pragati Edifice Private Ltd., [2019 (31) GSTL 241 (Tri-Hyd)]. Thus, the appellant is liable to discharge service tax under the head Works Contract Service with effect from 01.06.2007 and after adjustment of the proposed tax for complex having less than 12 flats, the balance demand of Rs. 17,84,97,162/- is fit to be confirmed. Further, the Learned Commissioner also erred in holding that the construction of residential complex cannot be classified under Works Contract Services. 10.4 It is further urged that the demand of Rs. 21,029/- under the head GTA Services for the period 01.06.2007 to 30.09.2011 as proposed in the show cause notice have not been considered as findings to be recorded. The tax under GTA service is chargeable under RCM. 10.5 With regard to payment of Rs. 3,98,08,809/- under Section 73A as admittedly appellant have collected the tax from the freight during the period 16.05.2005 to 30.09.2011 was correctly proposed to be liable to be deposited with the Government. It is erred that an amount of Rs. 19,36,812/- was incorporated or considered twice and accordingly in the first Order-in-Original reduced amount of Rs. 3,78,71,997/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to 01.06.2007 is applicable only in case of works contract and / or on going works contract, which though had started prior to 01.06.2007 continued thereafter. Further urged that in the instant case the appellant is constructing residential complex under development agreement cum power of attorney with the land owner, and the said activity is not works contract. In this model, there are three parties involved namely i) Land Owner ii) Builder/Developer and iii) Buyer. Whereas normally under Works Contract Service there are only two parties, the service provider and the service receiver and normally the land belongs to the service receiver. 12. So far the demand of Rs. 21,029/- is concerned, the Learned Commissioner accepted the plea of the assessee that the said amount stood paid prior to issue of show cause notice and the same have been appropriated in the first Order-in-Original dated 29.11.2013. Thus ipso facto, the issue no longer survives. 13. Heard the parties and perused records. 14. Having considered the rival submissions, we find that there is no illegality or impropriety in the impugned order. Learned Commissioner, in view of the observations of this Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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