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2019 (9) TMI 889 - AT - Service TaxLiability of service tax - amount received from the prospective buyers where such amount includes consideration towards undivided share of land within the period 2010-11 to 2014-15 - services availed from two sub-contractors in undertaking construction activity when these sub-contractors have discharged the service tax liability - construction activity undertaken for educational institutions and on the deposits collected from all the buyers of residential apartment towards resident/owner welfare association to be used for future payments. Demand of service tax - amount received from the prospective buyers where such amount includes consideration towards undivided share of land within the period 2010-11 to 2014-15 - HELD THAT:- The learned Commissioner held that the appellant has collected sums from the buyers before the receipt of the occupancy certificate/completion certificate and therefore provided taxable service as per Section 65(105) (zzzh) of the Finance Act 1994. He also relied upon the Board Circular 151/2/2012-ST dated 10.02.2012 - reliance placed in the case of GS. PROMOTERS VERSUS UOI [2010 (12) TMI 34 - PUNJAB AND HARYANA HIGH COURT] where it was held that the levy of tax is on service and not on service provider and construction services are certainly provided even when a constructed flat is sold. Taxing of such transaction is not outside the purview of the Union Legislature as the same does not fall in any of the taxing entries of State list - service tax cannot be levied. Demand of service tax - reverse charge mechanism on the services availed by them from two sub-contractors - HELD THAT:- Karnataka High Court in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX & CUSTOMS, BANGALORE-II VERSUS NITHESH ESTATES LTD., [2018 (7) TMI 1135 - KARNATAKA HIGH COURT] where it was held that the appellants are not liable to pay any service tax as the building constructed by them is not for the use of Commerce or Industry - no service tax is liable to be paid by the appellants in this regard. CENVAT Credit - the service provider has not furnished Cenvat credit documents to the Department for verification and thus failed to comply with the provisions of Rule 6 of the Cenvat Credit Rules - HELD THAT:- In terms of N/N. 21/2014-CE (NT) of Cenvat Credit Rules, 2004 the service provider shall not take credit after 6 months of date of issue of any documents specified in sub-rule (1) of Rule 9. However, learned counsel for the appellants submits that the credit was due to them prior to 11.07.2014 i.e the date of amendment of Rule and therefore, they are not barred from taking credit. However, it is held that no service tax is payable by the appellants on the issues raised in the impugned order we are not going into the issue of credit. Appeal allowed - decided in favor of appellant.
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