TMI Blog2015 (5) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... while considering the stay application. Therefore, following the precedent decision of this Tribunal in the case of Karni Construction (Supra) we waive the requirement of pre deposit of entire amount of service tax, interest and penalties and stay recovery thereof during the pendency of the appeal. - Stay granted. - Application No. ST/Stay/50518/2014-(DB), Appeal No. ST/50413/2014-ST (DB) - - - Dated:- 30-3-2015 - Ashok Jindal, Member (J) And R. K. Singh, Member (T),JJ. For the Appellant : Shri O P Agarwal , CA For the Respondent : Shri Govind Dixit, DR ORDER Per: Ashok Jindal: A service tax demand of ₹ 59 ,59,280 /- along with interest and various penalties under the Finance Act, 1994 has been confirmed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to construction of compound wall gate, soakage well, surface drains, etc. It was further submitted that the construction of individual houses are not liable to service tax, under construction of complex service. Before examining the taxability, it would be important to go through the provisions of the law as existed during the relevant point of time, are reproduced hereunder: (A) Construction of Complex Service which became taxable and liable to service tax with effect from 16.6.2005 is defined under section 65( zzzh ) of the Finance Act. 1994 as under: Construction of Complex means- (a) construction of a new residential complex or a part thereof: or (b) completion and finishing services in relation to residential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for use as a place of residence:'. (B) 'Works Contract Services' was inserted w.e.f , 1.6.2007. Section 65 (105) ( zzzza ) defines the 'works contract service' as under: Taxable Service means any service provided or to be provided to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. Explanation: For the purposes of this sub-clause, works contract means a contract Wherein ,- (i) transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and (ii) such contract is for the purposes of carrying out,- (a) ere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial. Thus classifications of services involved in execution of work shall depends upon the nature and scope of individual work orders/contracts. The details of the work executed by the noticee are as under :- Work Order No. Date Nature of work Numbers of houses 686/30.10.06 1873/9.11.06 Construction of residential houses at MP Nagar Bikaner 3 HIG + 10 MIG -B + 29 MIG -A 1038/16.3.07 - do - 19 HIG 920/7.12.07 - do - 37 LIG 959/19.12.07 - do - 15 LIG 291/8.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the period 01.10.2006 to 31.05.2007 the services were covered under 'Construction of Complex Service'. If one looks at the definition of the 'Construction of Complex Service' vis -a- vis the definition of 'Works Contract Service' introduced w.e.f . 01.06.2007 it becomes evident that there is no effective difference, however the sine qua non for classification under the 'Works Contract Service' is that the property in goods should pass to the Service receiver and VAT or sales tax should be paid on that property. Therefore even after introduction of Works Contract Service if the two conditions are not fulfilled the same activity may fall under other category of taxable services but if the conditions are fulf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition as stipulated in the definition that the contract should be for the purpose of carrying out any activity defined under para (a) to (e) of sub clause (ii) of said definition referred above. In this regard, the work carried out by the noticee were covered under para (c) of sub-clause (ii) of the definition referred above. Therefore, the second condition of the definition is also satisfied. 6. He further submits that on further scrutiny of the work order it is observed by the Ld. Commissioner that the services provided in relation to the construction of LIG , MIG and HIG houses/residential complex and Rajasthan Housing Board falls preliminary under the definition of residential complex services. As these houses / complex satisfies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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