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2018 (7) TMI 434 - AT - Service TaxConstruction services - Construction of residential Complexes - flats constructed for own units - scope of the term 'Personal use' - Suppression of facts or not? - invocation of proviso to Section 73(1) of Finance Act, 1994 - demand of duty with interest and penalty - applicability of CBEC Circular. No. 332/35/2006-TRU, Circular No. 80/10/2004 and CBEC Circular No. 108/02/2009 - extended period of limitation. Held that:- What is sought to be excluded by Section 65(91a) of the Finance Act, 1984 is only a person who directly engages any other person, far from the construction of such complex, which is intended for his personal use as residence. This, read with the explanation provided for “personal use” coupled with the facts of the case on hand for construction of 106 units, makes it abundantly clear that the residential complex so constructed, was not for the personal use as residence of the appellant. Applicability of decision in the case of Magus Construction Pvt.Ltd. [2008 (5) TMI 18 - HIGH COURT OF GAUHATI] to the acts of present case - Held that:- The issue involved in the case of Magus Construction Pvt.Ltd. is clearly in the context of builders who construct flats and then effect sale of the same, as contrary to the sale of UDS alone in the case on hand - the case do not apply to the facts of present case. It is also equally relevant to refer to another decision/order of this very Bench, in the case of CCE .Vs. M/s. Lancy Tanjore Power Co. Ltd.[2018 (3) TMI 1010 - CESTAT CHENNAI], wherein, the court has concluded that since the definition provided under Section 65(91a) specifically excluded construction undertaken for personal use including permitting the complex use as residence by another person, that exclusion covered the construction activity of the assesse and thus the service tax liability would not sustain. There will be no service tax liability on the appellant - appeal allowed.
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