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2015 (5) TMI 598 - CESTAT NEW DELHI

2015 (5) TMI 598 - CESTAT NEW DELHI - TMI - Classification of service - whether the services provided by the noticee during the period from 1.10.2006 to 31.3.2011 fall under the category of 'Construction of Complex Services' or any other service according to nature of work undertaken by them - Held that:- Certificate issued by the Rajasthan Housing Board satisfies that the construction was of individual residential housing unit and the issue has been covered by the decision in the case of A.S . .....

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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 against the applicant for their activity under the category of "Construction of Residential Complex" servic .....

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as granted unconditional waiver of pre deposit. Therefore, waiver of pre deposit be granted. 4. On the other hand Ld. AR strongly opposes the contention of the Ld. Counsel and submits that the Ld. Commissioner has examined the issue in detail and observed in para 27 as under: 27. Now the moot point is whether the services provided by the noticee during the period from 1.10.2006 to 31.3.2011 fall under the category of 'Construction of Complex Services' or any other service according to na .....

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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- .....

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x'. Further the term 'residential complex' has been defined under Section 65( 91a ) of the Finance Act, 1994 as follows: ( 91a ) " residential complex" means any complex comprising of - (a) a building or buildings, having more than twelve residential units; (b) a common area, and (c) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system located within a premises and the layout of such pr .....

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another person on rent or without consideration; (b) " residential unit" means a single house or a single apartment intended 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 .....

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ise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or, air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or (b) construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of comme .....

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n examination of the work orders submitted by the noticee and other material facts available on record, I find that they have undertaken various types of works including construction of houses, drains, well, etc. for Rajasthan Housing Board ( RHB ) and all these types of works were covered by single work order and also these activities have been executed with material. Thus classifications of services involved in execution of work shall depends upon the nature and scope of individual work orders .....

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l in 47 HIG houses at MP Nagar. Bikaner - 207/20.6.08 Construction of surface drainate & soakage well in 52 LIG houses at MP Nagar, Bikaner - 131/6.5.08 Applying of POP works and compound wall gate in 19 HIG houses at MP Nagar, Bikaner - 29. On plain reading of definition of 'Construction of Complex Service' and 'Works Contract Service' w.e.f . 01.06.2007. I find that the description of activities under the both category of taxable services are identical, therefore the classi .....

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use notice that during 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 .....

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ffect from 01.06,2007 when the new service 'Works Contract' Service was made effective, classification of aforesaid services would undergo a change in case of long term contracts even though part of the service was classified under the respective taxable service prior to 01.06.2007. This is because 'works contract' describes the nature of the activity more specifically and, therefore, as per the provisions of section 65A of the Finance Act, 1994, it would be the appropriate class .....

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acts available on record, it is found that all the work orders were with material and there was transfer of property in goods involved in the execution of said contract which was leviable to tax as sale of goods hence first condition of the definition satisfies. The other condition 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 car .....

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