TMI Blog2008 (7) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... Member (Judicial) and Shri T.K. Jayaraman, Member (Technical) (Final Order No. 891/2008 dt. 28.7.2008 certified on 6.8.2008 in Appeal No. ST/439/2007) Shri Sagar Shah, CA for Appellant. Shri Hitesh Shah, SDR for Respondents. [Order per T.K. Jayaraman, Member (Technical)] - This appeal has been filed against Order-in-Original No. 89/2007, dated 8.10.2007 passed by the Commissioner of Service Tax Bangalore. 2. Shri Sagar Shah learned Chartered Accountant appeared on behalf of the appellants and Mr. Hitesh Shah learned SDR for the Revenue. 3. We heard both sides. 4. The appellant M/s. Rohan Builders are providers of service under the category of construction of residential complexes. The departmental offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, in terms of the above circulars, they would not be liable to pay any service tax. It was also urged that the Commissioner of Service Tax has erred in interpreting the dominant intention theory laid down by the Apex Court in the case of BSNL Vs. UOI (Writ petition (civil) 183 of 2003). It was also stated that the Commission has arbitrarily adopted the abatement method for calculating the service tax without considering the facts of the case. The levy of penalties under 76, 77 and 78 was challenged on the ground that the appellant had deposited the service tax before the issue of show cause notice. Therefore, it was urged that no penalties can be levied in terms of Section 73 (3) of the Finance. It was pleaded that there was no mens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o tax. Rolls Royce Indus. Power Vs. CCE 2004 (65) RLT 902 (CESTAT-Del.) =2006 3 STR 292 Delhi CESTAT 2. Prior to 01.06.2007 works contract cannot be leviable to service tax. Presuming without accepting that the construction activity undertaken by the appellants is a works contract, it cannot be taxed prior to 01.06.2007 since the same cannot be vivisected and part of it be made liable to tax. The service if any rendered by the appellants has to be classified under Works Contract Service as defined in Section 65 (105) (zzzza) r.w.s 65A and not under construction of complex service as defined u/s 65 (105) (zzzh). - Diebold Systems P. Ltd. Vs. CCEx., 2008-TIOL-489-CESTAT-MAD -L T Ltd. Vs. CCEx., 2007 TIOL 744 (Ahd-CEST ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave also gone through the various agreements which are on record. In fact, a typical agreement is a tripartite agreement between the appellant, who is known as Party No. 1 and then the purchaser of the flat who is known as Party No. 2 and a company named as Usha Martin Power Co. Ltd., which is known as the Third party. Originally the third party owns the land as per the tripartite agreement. The first party who is the appellant is actually the developer of the residential complex and in each agreement the second party is the purchaser of the flat. It is very clear that the first party who is the appellant has to develop the flats. The development includes the construction of residential complex. It can be seen very clearly from the said agr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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