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2023 (10) TMI 680 - AT - Service TaxExtended period of limitation - demand under construction of residential complex service for the period from 01.02.2007 to 31.01.2012 - requirement of payment of Service Tax by the principal contractor on behalf of the appellant or not - N/N. 01/2006-S.T. dated 01.03.2006 - HELD THAT:- The appellant had undoubtedly carried out construction activity, by virtue of indivisible works contract involving supply of goods and construction activity. Hence, the Revenue has proceeded on a wrong premise to confirm the impugned demand. Moreover, it is also clear, by virtue of there being no rebuttal by the Revenue, that the main contractor namely, M/s. Southern Properties and Promoters, had remitted Service Tax on the project, for which the appellant was only a sub-contractor. No doubt, the sub-contractor cannot claim immunity from Service Tax just because the liability was on the main contractor, but once we agree that what was involved was indivisible works contract which was not at all amenable to Service Tax in the hands of a builder, at least up to the date of insertion of Explanation i.e., 1.07.2010, there cannot be any liability in the hands of the appellant up to 01.07.2010 under construction of complex service - For the subsequent period, however, even though the work was carried out by virtue of indivisible works contract, the authority below has chosen to confirm the demand only under construction of residential complex service, which is not in accordance with law since, apparently, the tax is demanded under a wrong classification which is not permissible in view of the decision of the Hon’ble Apex Court in the case of COMMISSIONER, CENTRAL EXCISE & CUSTOMS VERSUS M/S LARSEN & TOUBRO LTD. AND OTHERS [2015 (8) TMI 749 - SUPREME COURT]. The demand in the impugned order cannot sustain, for which reason the same is set aside - Appeal allowed/
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