TMI Blog2017 (10) TMI 1061X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee to approach the CESTAT, is fully justifiable - appeal dismissed being not maintainable. - W.A. No. 1018 of 2017 - - - Dated:- 6-10-2017 - S. Manikumar And R. Suresh Kumar, JJ. For Appellant : Mr.T.Ramesh For Respondent : Mr.R.Hemalatha JUDGEMENT (Judgment of the Court was delivered by R.SURESH KUMAR,J.) This appeal has been preferred against the order passed by the learned Judge in W.P.No.18354 of 2017 dated 19.7.2017. 2. The very minimum facts which are required to be noticed for the disposal of this appeal are as follows: (i) The appellant is an assessee and having the service tax registration number for providing services under the taxable category of construction of residential complex . (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th those writ petitions were disposed of on 20.6.2016 whereby both the Orders-in-Original were set aside and the matters were remanded to the Adjudicating Authority for de nova consideration. (xi) Pursuant to the said directive issued by this Court, after notice, again personal hearing was held on 10.4.2017 and the appellant/petitioner had given written submissions once again. The said written submissions given in detail has been considered and ultimately, by order dated 24.4.2017, the Adjudicating Authority passed Order-in-Original pursuant to both show cause notices. In the said Order-in-Original, i.e., the impugned order, the demand in respect of both show cause notices have been confirmed along with interest. However, insofar as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit that, it is a fact that individual houses were constructed in a separately demarcated area/plot and therefore, each building/house/unit shall be construed only as an individual house. Therefore, the service, if at all rendered for construction of such individual houses shall not be taken into account, as a service rendered for residential complex, and therefore, the learned counsel for the petitioner would submit that the petitioner cannot be subjected to levy of service tax on the taxable category of construction of residential complex . 5. On the strength of these factors, the learned counsel for the petitioner would submit, that the assessment made and the demand confirmed through the impugned order, i.e, the Order-in-Original pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplex is intended for personal use as residence by such person. 7. Since the term residential complex means any complex of a building or buildings having more than twelve residential units, if a residential building / apartment having more than twelve units or if a residential area consisting of more than twelve residential units or buildings even individually, in both way that shall be construed as residential complex, thereby, it attracts the levy of service tax. 8. The learned standing counsel would further state that this has been exhaustively discussed and decided on facts by the Adjudicating Authority in the Order-in-Original that the construction made by the appellant company can definitely be construed as residential comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge in the order impugned, one can find that all the issues raised by the appellant side, namely, whether the construction made by the appellant company is to be construed within the meaning of residential complex or not and whether the extended period for issuance of show cause notice was justifiable or not and also the liability of the appellant / assessee, to pay service tax with interest and penalty as demanded by the assessee are all the matters of fact. Since the Appellate Tribunal is the final fact finding authority under the Act, as has been held by the learned Judge in the impugned Judgment, those aspects can very well be agitated by the appellant before the said Tribunal by preferring statutory appeal. 14. The law is well sett ..... X X X X Extracts X X X X X X X X Extracts X X X X
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