TMI Blog2018 (12) TMI 1040X X X X Extracts X X X X X X X X Extracts X X X X ..... nd not under Residential Complex Service as has been demanded in the impugned order. In view thereof, there is no hesitation in setting aside the demand of Rs. ? 83,77,188/- with interest thereon under the category of construction of residential complex service. The portion of the impugned order to the contrary demanding the aforesaid amount with interest thereon is set aside. Site formation and clearance service - Held that:- The site formation and clearance activity has obviously been done by the appellant by themselves, for themselves. Further neither the agreement for sale had not seen light of the day, nor were the buyers visible on the horizon, at the time when the site formation etc of the land was carried out by the appellant - s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the period 2006-07 to 2007-08 with interest thereon and also proposing imposition of penalties under various provisions of law. In adjudication vide the impugned Order No.59/2012 dt. 30.03.2012, the adjudicating authority confirmed the aforesaid demands, however extended cum duty benefit and thereby reduced the demand to ₹ 83,77,188/- under construction of residential complex service for the period April 2006 to March 2009 and ₹ 27,76,231/- under site formation and clearance service for the period April 2006 to March 2008, totalling to ₹ 1,11,53,419/- towards service tax liability along with interest thereon. Equal penalty was imposed under Section 78 of the Act. Penalty was also imposed under Section 77 (2) ibid f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid decision is that Residential Complex Service would cover only pure service contracts, without any transfer of property in goods involved and cannot be invoked for composite contracts entered into by the Assessee prior to 01.06.2007. (ii) For an activity involving construction of new residential complex involving indivisible composite contract, such services will require to be exigible to service tax only under Works Contract Service . It is settled law that for an activity involving indivisible composite contract, such service will be exigible to service tax only under works Contract Service on or after 01.06.2007 and not under Residential Complex Service as per the judgment of this Hon ble Tribunal in the case of Real Value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... development income was reported in the profit and loss account of the respective financial years. (vii) A sum of ₹ 1,58,08,252/- (FY 2007-08) is accounted as sale of land in the Profit and Loss Account for the year ending 31st March 2008 and an amount of ₹ 15,54,548/- is shown as land development charges under the head Income . Actually, both these figures are nothing but income from sale of UDS. The sum of ₹ 1,58,08,252/- has been accounted as income from sale of land in the Profit and Loss account for the year ending 31st March 2008 and an amount of ₹ 15,54,548/- has been accounted under the head Land Development Charges in the Profit and Loss Account for the year ending 31st March 2008. (viii) It is a set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra), the said activity will be exigible to service tax only under Works Contracts Service and not under Residential Complex Service as has been demanded in the impugned order. In view thereof, we have no hesitation in setting aside the demand of Rs. ₹ 83,77,188/- with interest thereon under the category of construction of residential complex service. The portion of the impugned order to the contrary demanding the aforesaid amount with interest thereon is set aside. 6.2 The second demand relates to site formation and clearance service allegedly provided by the appellant. During the adjudication proceedings appellants have contended that the said activities were undertaken before sale of land took place, hence the service was a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant. 6.3 We therefore have no doubt in our mind that the such activity was a self service and hence the same cannot be exigible to service liability under the Finance Act,1994. This being so, portion of the the impugned order to the contrary demanding ₹ 27,76,231/- with interest thereon under the category of site formation and clearance service cannot be sustained and will have to be set aside, which we hereby do. The demands having been set aside, in consequence penalties are also set aside. 7. Appeal is therefore allowed in toto with consequential benefits, if any, as per law. 8. The MA filed by Revenue for change of cause title consequent to the introduction of GST and the resultant change in the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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