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2018 (6) TMI 129 - AT - Service TaxConstruction of service - Composite Contracts - Construction of residential complex in Hydel power project colony for the power generation company which they use for residence of their staff working on the said dam - Construction of peripherals of construction of hydro electricity dams - Supply of Construction equipments/machinery to be used in construction of dams and residential complex - Penalty - Held that:- The residential complex which has been constructed by the appellant is for the personal use of the staff of the services recipient, therefore, in the light of decision in the case of Mall Enterprises [2015 (11) TMI 333 - CESTAT MUMBAI] as residential complex has been constructed for the personal use, the demand of service tax is not sustainable - demand set aside. Construction of peripherals of construction of hydro electricity dams - Held that:- The construction and residential construction for items namely: Hydel tail/tunnel, approach road, construction of cooling water sump desilting tank, power channel and water conductor and construction of hydel project are in respect of dam and the same is exempt from payment of service tax - demand set aside. Supply of Tangible goods - Supply of Construction equipments/machinery to be used in construction of dams and residential complex - Held that:- The appellant is required to pay service tax on the said supply of tangible goods under the category of supply of tangible goods, therefore, demand in respect of supply of tangible goods is confirmed - further, the appellant has not recovered any amount towards service tax, therefore, the payment received by the appellant on supply of tangible goods shall be treated as cum tax price and the appellant is entitled for the benefit of the same - A demand of ₹ 2,33,756/ on account of supply of tangible goods is confirmed but the appellant shall be entitled for the benefit of cum tax. Penalty - Held that: - As the appellant was under bona-fide belief that the supply of tangible goods is used in respect of dam, therefore, they are not liable to pay service tax. In that circumstances, benefit of section 80 of the Finance Act, 1994 is given to the appellant - penalty set aside. Appeal disposed off.
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