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2023 (7) TMI 1020 - AT - Service TaxScope of SCN - Change in classification by impugned order - SCN demand differs from impugned order - construction of residential complex services to Commercial or Industrial Construction Services - works contract service or not - renting of immovable property service - suppression of facts or not - extended period of limitation - HELD THAT:- It is an admitted fact that the show cause notice has proposed the demand of Service Tax under construction of residential complex. However, in the impugned order the demand was confirmed under Commercial or Industrial Construction Service. Thus, the impugned order has travelled beyond the scope of show cause notice. The show cause notice cannot be rectified by way of Adjudication Order passed in such show cause notice, therefore, on this ground alone demand is not sustainable. Moreover, the period involved is 2005-06, even if it is assumed that the appellant had provided commercial or industrial construction service but undisputedly the service was provided along with material, therefore, it is falling under works contract Service - The levy of Service Tax on Works Contract was brought under the statute only with effect from 01.06.2007. The Hon’ble Supreme Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT] clearly held that if the nature of the services is of works contract, the same is not levy to service prior to 01.06.2007. Extended period of limitation - renting of immovable property service - HELD THAT:- The levy of service Tax on renting of immovable property was not free from doubt, there were contrary judgments on this issue and finally the matter seized by the Hon’ble Supreme Court. Therefore, the issue involved is of interpretation of the definition of renting of immovable property service. Moreover, the demand was raised on the basis of scrutiny of the documents of the appellant during the audit. This also shows that appellant have no intention to hide their transaction with intent to evade payment of Service Tax, therefore, in absence of any suppression of fact, fraud or collusion etc. the demand for the extended period cannot be sustained - this demand under renting of immovable property service is set aside on the ground of limitation. Appeal allowed.
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