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2019 (12) TMI 14 - CESTAT BANGALORELevy of service tax - constructions of complex services - Consulting Engineer Service - period 01.04.2007 to 31.03.2012 - time limitation - HELD THAT:- The present SCN is issued on 19.10.2012. The explanation was added on 1-7-2010, the services rendered by the appellants before the issuance of completion certificate were not taxable as they were deemed to be services rendered by the builder to himself. CBECD circular dated 29-1-2009 and the trade Facility notice No 1/2011 dated 15-2-2011 issued by Pune Commissionerate have amply clarified that same - As submitted by the appellants, the tribunal has consistently taken the stand that the explanation inserted in 2010 cannot be retrospective. Under the circumstances, it is to be held that such service was not liable to service tax before 1-7-2010. Extended period of limitation - HELD THAT:- Department was well aware of the activities and transactions while issuing the first show cause notice itself. Therefore, no suppression could be held against the Appellants and invoked while raising demand for the subsequent period - extended period cannot be invoked in subsequent SCN, more so, when the first SCN itself was issued invoking extended period. Classification of services - Construction of Residential Complex service or not - construction of villas - HELD THAT:- The construction of villas would not fall within the ambit of ‘construction of residential complex service’ and no service would be liable to be paid on villa receipts. Regarding the activity of construction undertaken by the appellant in respect of other residential complexes, we find that the appellants have submitted various decisions. They appear to be diverse and the issue has not reached finality - the demand on this count if any is sustainable for the normal period i.e. 1-4-2011 to 31-3-2012. Learned Counsel further submits that the Commissioner has not considered their submissions in the impugned order - the case needs to go back to the original authority, to appreciate the evidence submitted by the appellants and to re-quantify the duty liability for the period 1-4-2011 to 31-3-2012. Consulting Engineer Service - penalty - appellants have submitted that they are not contesting the duty paid by them in respect of ‘Consulting Engineer’s Service’. However, they submit that the penalty may be set aside on the ground that entire tax was paid before the issuance of Show Cause Notice - HELD THAT:- In respect of ‘Construction of Residential Complex’, we hold that most of the demand has been held to be barred by limitation. Consequentially, the penalty also is not imposable for the period. Moreover, looking in to the facts and circumstances of the case, where the issue is mired by frequent changes in law, clarifications and judicial pronouncements, it is not proper to allege that the appellants had a mens rea in the case. Therefore, for extended period penalty is not imposable. For normal period also, there are enough conditions to waive penalty in terms of Section 80 of Finance Act, 1994 - In respect of ‘Consulting Engineer’s Service’ as the demanded duty is paid before the issuance of notice, no penalty can be imposed - penalty set aside. Appeal allowed in part.
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