2008 (4) TMI 17 - AT - Service Tax

Appellant have not engaged any contractor or service provider in relation to construction of the complex and that the entire work has been carried out by the appellant as developer and builder and the ready built flats are being sold - Service Tax is not payable

Summary

Issues:
1. Stay petition for waiver of pre-deposit of amounts.
2. Applicability of service tax on construction of complexes.
3. Interpretation of CBEC circular dated 23.8.2007.

Analysis:
1. The Tribunal, after hearing both sides on the stay petition, decided to grant waiver of pre-deposit of amounts and proceed to dispose of the appeal itself. The appellant, engaged in construction of complexes without involving any contractor, argued against the service tax imposition based on a circular issued by DGST. The Commissioner (Appeals) had rejected the appeal due to non-compliance with the pre-deposit order under section 35F.

2. The appellant's advocate contended that the DGST circular was superseded by a consolidated circular dated 23.8.2007, clarifying that in cases where no other person is engaged for construction work and the builder undertakes the work independently, no service provider and recipient relationship exists, and the services provided are considered as self-supply of services. The Tribunal noted the relevance of the circular and its retrospective application, which was not available to the original authority or the Commissioner (Appeals). Consequently, the Tribunal set aside the Commissioner (Appeals) order and remanded the matter for reconsideration in light of the circular.

3. Considering the favorable impact of the CBEC circular on the appellant's case and its retrospective application, the Tribunal allowed the appeal by way of remand, disposing of the stay petition. The decision was made to ensure a fresh consideration of the matter without insisting on the pre-deposit of the disputed amount, emphasizing the significance of the Circular No. 96/7/2007 dated 23.8.2007.

This judgment showcases the importance of updated circulars in tax matters and the retrospective application of clarifications to ensure fair consideration of cases, ultimately leading to the allowance of the appeal and disposal of the stay petition.