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2017 (12) TMI 172 - AT - Service TaxClassification of services - Residential Complex service - Commercial or Industrial Construction services - extended period of limitation - it was alleged that the construction of building for SBI and Shrama Vikram Motors falls under category of Commercial or Industrial Construction Services under Section 65 (25b) of the Finance Act, 1994 and construction of Residential Complex is under Section 65 (91a) of the Act - whether the construction services provided along with material, falls under the Works Contract service or construction of Commercial or Industrial Construction Services / Residential Complex services? Held that: - the Works Contract means, transfer of property including such contract as sale of goods and such contract involve the purpose of carrying out various construction services. Admittedly, in the case in hand, the appellant has constructed Residential Complex and other construction services along with material which has not been disputed. Therefore, the proper classification of the activity undertaken by the appellant is more appropriately falls under Works Contract service and the same has not been alleged against the appellant in the show cause notice issued to the appellant. Extended period of limitation - the show cause notice has been issued by invoking extended period of limitation on the ground that, as the appellant has sought information through RTI applications whether their activity is liable to be taxed or not and the same has been replied by the different Commissionerates as well as service recipients that their activity is not liable to be taxed under Finance Act, 1994 - Held that: - reliance placed in the case of M/s. UNIWORTH TEXTILES LTD. Versus COMMISSIONER OF CENTRAL EXCISE. RAIPUR [2013 (1) TMI 616 - SUPREME COURT], where it was held that on account of the fact that the burden of proof of proving mala fide conduct under the proviso to Section 28 lies with the Revenue; that in furtherance of the same, no specific averments find a mention in the show cause notice which is a mandatory requirement for commencement of action under the said proviso, and that nothing on record displays a willful default on the part of the appellant, we hold that the extended period of limitation under the said provision could not be invoked against the appellant - extended period cannot be invoked. The appropriate classification of the services in question is Works Contract service and show cause notices not allege to demand service tax under Works Contract, therefore, the demand of service tax is set-aside - extended period also not invoked - appeal allowed - decided in favor of appellant.
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