TMI Blog2015 (12) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... (30a)/105)/(zzzh) - impugned service clearly gets covered under construction of complex service liable to service tax. However, as conceded by learned DR, the demand has to be worked out on the amount of ₹ 8,80,52,533/- after giving 67% abatement without adding the value of free supplies in the light of the judgment in the case of Bhayana Builders Pvt. Ltd. Vs. CST, Delhi- [2013 (9) TMI 294 - CESTAT NEW DELHI (LB)]. As regards cum- tax benefit, learned DR opposed it on the ground that the amount received was not inclusive of service tax. In this regard, it is to be mentioned that Haryana Housing Board is not liable to pay any amount towards service tax in respect of the present case. This inference is supported by the fact that su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be granted to it. (iv) There was no wilful mis-statement/suppression of facts as the figures were obtained from the Haryana Housing Board, therefore no penalty is called for and substantial part of demand is time barred. (v) benefit of reduced mandatory penalty should be extended. 3. Learned DR stated that it is a clear case of construction of residential complex for Haryana Housing Board and therefore the judgements in the case of Macro Mavel Projects Ltd. Vs.CST, Chennai and A.S.Sikarwar vs. CCE, Indore are not applicable to the facts of this case. He submits that the residential complex constructed by appellant had common parking area, common community hall, common park, and more than 12 residential units and so is clearly cover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, renovation or restoration of, or similar services in relation to, residential complex;] Section 65 (91a) residential complex means any complex comprising of - (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) 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 premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than 12 residential units. Thus the complex constructed clearly satisfies the definitions of residential complex given in section 65 (91a) ibid and the service of construction of complex (defined in section 65 (30a)/105)/(zzzh) ibid. reproduced above. 5. In view above discussion, the judgements in the case of Macro Mavel Projects Ltd. Vs.CST, Chennai (supra) and A.S.Sikarwar vs. CCE, Indore (supra) are not applicable to the facts of the present case because in those cases individual residential houses were constructed which did not satisfy the definition of residential complex reproduced above. Thus, we hold that impugned service clearly gets covered under construction of complex service liable to service tax. However, as conceded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equal penalty has not been given by the lower authorities, we find that Gujarat High Court in the case of Chandan Steel Ltd.2015 (316) ELT 573 (Gju.) has held that the benefit of reduced mandatory penalty can be given by CESTAT if the same has not been extended expressly by the lower authorities. 6. In view of the above discussion, we uphold the impugned order with the modification that the demand confirmed is reduced to the amount of Service Tax calculated on 33% of ₹ 8,80,52,533/- with the cum-tax benefit and the penalty under Section 78 is also modified to be equal to the demand so calculated. The primary adjudicating authority will intimate the appellant the demand of Service Tax and penalty (under Section 78) so calculated wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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