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TMI Blog2017 (10) TMI 404X X X X Extracts X X X X X X X X Extracts X X X X ..... al Council Umred and construction of testing track of RTO Chandrapur. The activities being repair to major bridge and repair of compound wall at Government Engineering College at Chandrapur. The appellants are also engaged in construction of complex service and have constructed residence quarters for clients namely M/s. Nagpur Housing and Area Development Board, WCL and PWD. The appellant were neither registered under any of the category of service nor were they filing ST.3 Returns. The appellants were issued show cause notice in respect of the service provided. The said show cause notice was confirmed by the Commissioner. 2.1. Learned Counsel argued that in respect of many of the contracts agreement for the construction is inclusive of material. For instance the agreement for the construction of coal washiery at Ghugus includes concrete work and supply of doors and windows thus it becomes a works contract. Similarly the construction an administrative building for BSNL Chandrapur is also inclusive of all material except steel and thus it is a works contract. In respect of WCL Central Workshop at Tadali, the value of materials were included in the contract and thus it becomes works ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to be considered as road. The vehicle testing can only be done on record. 3. Ld. AR relied on the impugned order. 4. We have gone through the rival submissions, we find that the impugned order denies benefit of Notification No. 1/06 in respect of services where material was included in the provisions of service. In respect of these contracts, Ld. Counsel has argued that these are in the nature of works contract and can be taxed only from the introduction of works contract service and not prior to that. Countering this Ld.AR has argued that this defense has not been raised in the grounds of appeal and therefore cannot be raised now. He argued that the appellant has accepted their liability after availing benefit of Notification No.1/06. The argument that the services are in the nature of works contract services is a legal argument and can be raised by the appellant even if it was not raised earlier. In his submissions before Tribunal the Ld. C.A. has brought to our attention pages 315 to 332, 357 & 358, 344, 353, 354 of appeal to show that the said contracts are in the nature of works contracts as the price is inclusive of material and works contract tax has been deducted. In r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax Notice for the work of Construction of multipurpose hall and library for the Dr. Babasaheb Ambedkar Backward class boys hostel at Umred, Dist. Nagpur. Ref:- Agreement No. B1/08/DL of 2009-10 dated 25.05.2009 Letter No. DVP/NGP/PWD/2013/dated 15.04.2013 This is to state that the above constructed multipurpose hall and library building is not for sale/commercial use by public and/or private or any other entity and are constructed only for the use of boys residing in backward class boys hostel not for others." In view of the clear cut Certificate the same cannot be treated as commercial building attracted service tax in the category of commercial and industrial construction. The certificate issued from the office of Municipal Corporation, Umred dt. 30.4.2012 also certifies that it is used for public utility and no revenue generated from the same. In view of this certificate, it is apparent that no tax under the category of commercial and industrial construction can be demanded in respect of these structures. 4.3. The next issue to be dealing with the demand of service tax under the category of Management, Maintenance or Repairs for goods, equipments or properties service. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of approved quality 30cm X30cmX5.5.mm for flooring in required position------------ 53. Providing and fixing ceramic tiles of approved quality 30cm X 30cm X5.5mm for flooring in required position--------- Testing track is nothing but a road. It can be described as a specialized road with special features but it is a road nonetheless. The exemption is not to public road only but the exemption is available to all roads. Under these circumstances no tax can be levied on the said tax testing track under the category of commercial and industrial construction service. 5. The appellant are also argued against confirmation of demand in respect of construction of Complex Service. The appellant have contended that the said construction is for personal use of the service recipient and therefore cannot be charged to service tax under the construction of complex service. In this regard they have given following as the nature of construction and use.- Sr. No. Name of Work Appellant appointed as contractor for construction of complex by Complex intended for personal residential use for (1) (2) (3) (4) 1 Work of constructions of 80 nos Double Storey Minor quarters along with devel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department and the contractor and after the residential complex is constructed, the same was handed over by CPWD to Income tax department and therefore, in terms of the clarification issued by the Board also, the appellant would be liable to pay service tax. He drew our attention to the letter relied upon by the learned advocate and submitted that in that letter, it has been clarified by the Board that if NBCC were to construct residential accommodation and handover to Govt. of India, there would be no liability to service tax. However, if NBCC were to entrust the work to sub-contractor and such sub-contractor constructed the residential complex and handed over to NBCC who in turn handed over the same to Govt. of India, service tax would be leviable. He drew our attention to the observation of learned Commissioner in his order wherein he has also held that this is not a case where residence is for personal use of a person and is not covered by the explanation given under clause (30a). We have considered this submission. We find ourselves in agreement that the contention of the learned advocate that service has been provided by the appellant to Govt. of India in this case and CPWD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ential complex] The definition of residential complex service has been given under clause (91a) of Section 65 as under; "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 intended for personal use as residence by such person. Explanation - For the removal of doubts, it is hereby declared that for the purposes of this clause- (a) "personal use" includes permitting the complex for use as residence by 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."] We have already explained the submission of learned advocate in b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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