TMI Blog2020 (3) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... l in MACRO MARVEL PROJECTS LTD. VERSUS COMMR. OF SERVICE TAX, CHENNAI [ 2008 (9) TMI 80 - CESTAT, CHENNAI] and AS SIKARWAR VERSUS COMMISSIONER OF CENTRAL EXCISE, INDORE [ 2012 (11) TMI 1000 - CESTAT, NEW DELHI] clearly apply to the facts of the present case, where it was held that service tax can be demanded under section 65(105)(zzzh) only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where in one compound has many buildings, each having not more than 12 residential units. The definition of construction of complex and a residential complex continue to remain the same after 1 July, 2012 and, therefore, service tax liability could not have been fastened even after 1 July, 2012 under construction of complex - The levy of service tax on the appellant under construction of complex service is, therefore, not justified and, cannot be sustained. The order confirming the demand of service tax under construction of complex services is set aside - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.52243 of 2016 [DB] - Final Order No. 50617/2020 - Dated:- 13-3-2020 - HON BLE MR. JUS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 31 March, 2013. Thus, it is clear that the Principal Commissioner has confirmed the demand of service tax only with regard to the work executed for the Bhopal Development Authority for the period 1 April, 2012 to 31 March, 2013 and has discharged the demand made for the other works carried out for the Bhopal Development Authority. 6. Shri Sandeep Mukherjee, learned Chartered Accountant appearing for the appellant has made the following submissions:- (i) A residential complex means a complex comprising a building or buildings, having more than 12 residential units and since the appellant had constructed buildings that did not have more than 12 residential units, no service tax liability could be fastened upon the appellant for construction of 489 EWS quarters at Vinayak Nagar, for the Bhopal Development Authority for the period 1 October, 2007 to 31 March, 2012. (ii) The Principal Commissioner could not have levied penalty and interest upon the appellant; and (iii) The extended period of limitation could not have been invoked in the fact and circumstances of the present case. 7. The learned Authorized Representative of the Department has, however, supported the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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; 13. The definition of a residential complex leaves no manner of doubt that it would be a complex comprising of a building or buildings, having more than twelve residential units. In other words a complex may have a building having more than twelve residential units or a complex may have more than one building each having more than twelve residential units. Independent buildings having twelve or less than twelve residential units would not be covered by the definition of residential complex . In the present case, the appellant had constructed independent buildings having one residential unit only. Thus, even if the appellant had constructed more than 12 independent buildings, the nature of activity would not be construction of complex and, therefore, the service tax could be levied. 14. In this connection reliance can be placed on a Division Bench judgment of the Principal Bench of the Tribunal in Macro Marvel Projects Ltd. v/s Commissioner of Service Tax, Chennai 2008 (12) STR 603 (Tri.-Chennai) wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entry 65(105)(zzzh) for taxing construction of complex as defined under Section 65(91a) of Finance Act, 1994. The submission of the appellant is that the entry covers only such building where each of the building has got more than 12 residential units. They have built 15 independent houses and not a complex and hence their activity was not taxable under the entry 65(105)(zzzh) which adopts definition in Section 65(91a). He relied upon the decision of the Tribunal in the case of Macro Marvel Projects Ltd. v. CST, Chennai - 2008 (12) S.T.R. 603 (Tri.-Chennai). 2. The Authorised Representative appearing for the Revenue submits that the explanation under Section 65(91a) of Finance Act, 1994 gives definition of residential unit to mean a house or single apartment intended for use as a place of residence . Even if the residential units are separate, it will be covered by the definition, according to him. 3. The A.R. further submits that the decision in the case of Macro Marvel Projects Ltd. was with reference to the entry for works contract under Sections 65(105)(zzzza) of Finance Act, 1994 whereas the present case is in respect of construction of residential complex unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Complex defined under Section 65 (91a). The work doen by them is that of construction of buildings that do not have more than 12 residential units. Each building constructed by them contains only 1 residential unit. Under such circumstances, this construction is not construction of a Residential Complex since the condition given in para (i) is nto fulfilled. Again in this regard the Noticee relied on the decision of Macro Marvel reported in 2008 (12) S.T.R. 603 (Tri. Chennai), further affirmed by the Honourable Apex Court in 2012 (25) S.T.R. J154 (S.C.) and A.S. Sikarwar reported in 2012 (28) S.T.R. 479 (Tri. Del.). 35. Here it is important to note that the case laws quoted by the Noticees are not applicable in their case in as much as they have done construction of houses development work in complex having more than 12 residential units, common community hall, common parking area, and common part which clearly satisfy the definition of residential complex in Section 65 (91a) of Finance Act, 1994 and service of construction of complex defined in Sections 65 (30a) and 65 (105)(zzzh) ibid Impugned service clearly covered under construction of complex service liable to ..... 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