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2009 (5) TMI 67 - AT - Service TaxConstruction service – “commercial or industrial construction” and “construction of residential complex” – applicability of service tax – refund of service tax paid prior to 1..2007 after introduction of “works contract service” – held that - ‘Works contract service’ was brought under tax net on 1.6.2007, after the impugned activities were undertaken by PFL. As rightly argued by the appellants, the Tribunal had held in Diebold Systems case that activity such as erection/commissioning forming part of a works contract could not be taxed under erection/commissioning service prior to 1.6.2007. The contracts basic to the construction of commercial premises/residential premises were indivisible and involved a service element. In view of the ratio of the decision of the Tribunal, prima facie, the impugned demand is not sustainable. However, these two legal arguments were not taken before the Commissioner during the adjudication proceedings. – matter remitted for fresh decision. – sale of constructed property on its own can not be subject to service tax.
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