TMI Blog2012 (9) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... belonging to a builder and flats are sold after completion of construction, no service tax will be leviable - period 16.6.05 to 25.3.06 - Held that:- High Court in case of Magus Construction Pvt Ltd. vs UOI (2008 (5) TMI 18 - HIGH COURT OF GAUHATI) held that department is binding by the circular issued by Board and hence activity in question is not subject to service tax. In view of aforesaid, during the impugned period, the activity in question could not be considered as service and subjected to service tax - Decided in favor of assessee. - ST/686-688 of 2008 - ST/A/507-509/2012-Cus. - Dated:- 18-6-2012 - Mrs. Archana Wadhwa, Mathew John, JJ. Amresh Jain for the Appellant. Dharmendra Srivastava for the Respondent. ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondents to another parties and as such, service tax need not be paid. Aggrieved by the order of the Commissioner (Appeals), the Revenue has filed these appeals. 5. The contention of Revenue is that though the sale of the flats took place after completion, the respondents had taken advances from the respective buyers. Therefore, there was service that was being rendered to the prospective buyers. They rely on the following decisions namely:- 1. Mokha Builders Promoters v. CCE [2008] 15 STT 400 (New Delhi - CESTAT) 2. Hare Krishna Developers, In re [Application No. AAR/5 (ST)/2007, dated 7-4-2008] 3. G.S. Promoters v. Union of India [2011] 30 STT 268/[2010] 8 taxmann.com 271 (Punj. Har.). 6. Oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was added in the said entry. The Counsel relies on the decision of Apex Court in the case of Union of India v. Martin Lottery Agencies Ltd. [2009] 20 STT 203. The Counsel submits that since the CBEC had clarified the position that no service tax is payable, and the respondents had concluded their contracts with the buyers, relying on such clarification, the demands for service tax now being made are not justified. Therefore, he pleads that the demands may be set aside. 9. We have considered arguments of both sides. We find that the decision of the Punjab Haryana High Court in the case of G.S. Promoters ( supra ) was about the constitutional validity of explanation added under 65(105)(zzzh). The issue whether the said ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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