2009 (3) TMI 144 - AT - Service Tax

Commercial or Industrial Construction Service held that - the Adjudicating Authority in his impugned order has confirmed the entire demand on the appellant without bifurcating the amount payable by them towards the services rendered for the commercial complexes and for the residential complexes. It would be also not out of place to state at this juncture that the Circular dated 29.01.2009 was not before the Adjudicating Authority. Hence in all fairness the Adjudicating Authority should be given a chance to consider the circular in its proper perspective and also to give a chance to the appellant to provide the Adjudicating Authority with the evidences as regards the services rendered towards commercial complexes and residential complexes matter remanded

Summary

Issues:
Service Tax liability on the appellant for "Commercial or Industrial Construction and Construction of Complex Services".

Analysis:
The issue in this case pertains to the Service Tax liability on the appellant for services related to "Commercial or Industrial Construction and Construction of Complex Services" for the period from 10.09.2004 to 31.03.2006. The lower authorities found that the appellants had received consideration for their projects and for projects entrusted to others, availing the benefit of abatement. A show cause notice was issued to the appellant regarding denial of benefits claimed under certain notifications, demanding payment of Service Tax, education cess, interest, and imposing penalties for various failures. The appellants contested the notice, but the Adjudicating Authority denied the exemption claimed and confirmed the demand for Service Tax, education cess, interest, and penalties.

The appellants challenged the Adjudicating Authority's order through an appeal. The appellant's representative referred to a Board's Circular stating no service tax is payable for selling dwelling units in residential complexes, arguing that part of the activity was related to residential premises. The Special Counsel for the Revenue agreed that the issue needed reconsideration as the tax amount payable by the appellant for commercial and residential complexes was not bifurcated in the impugned order. Both sides acknowledged the need for the Adjudicating Authority to reconsider the issue.

The Appellate Tribunal, after considering the submissions and records, found that the Adjudicating Authority had not bifurcated the amount payable by the appellant for commercial and residential complexes. Noting that a relevant Circular was not before the Adjudicating Authority, the Tribunal remanded the matter back to the Adjudicating Authority for reconsideration. The Tribunal emphasized the importance of considering the circular and allowing the appellant to provide evidence regarding services rendered for commercial and residential complexes. The impugned order was set aside, and the matter was remanded back to the Adjudicating Authority for a fresh decision after granting a personal hearing to the appellants and considering any evidence provided by them.

In conclusion, the Tribunal allowed the appeal by way of remand, setting aside the impugned order and directing the Adjudicating Authority to reconsider the issue in light of the Circular and the evidence to be presented by the appellants.