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TMI Blog2023 (3) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... e following chart. Appeal No. Period of Refund Amount of Refund ST/50766/17 01.07.2013 To 30.09.2013 84,504/- ST/50767/17 01.01.2014 to 31.02.2014 25,456/- ST/50768/17 01.04.2013 to 30.06.2013 1,90,944/- 4. The appellant constructed individual/independent residential houses as per the work orders given by the Rajasthan Housing Board [the Housing Board]. The appellant has stated that the Resident Engineer of the Housing Board has given a certificate that the houses that have been constructed by the appellant are as per the work orders issued by the Housing Board and that they are independent residential houses having independent approach and entry with separate electricity and water connections. According to the appellant, service tax was deposited by the appellant on such constructed houses by mistake and even the Housing Board had also mistakenly deposited 50% of the service tax under reverse charge mechanism. The appellant claimed refund of the service tax deposited by the appellant as also the Housing Board since the Housing Board had awarded the contract in favour of the appellant for a gross amount, inclusive of all taxes and 50% of the service tax paid by the Hou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplex" has been defined in section 65(30a) of the Finance Act as follows : "Section 65(30a) - "Construction of Complex" "Construction of Complex" means a. Construction of a new residential complex or a part thereof; or b. Completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic application or fittings and other similar services; or c. Repair, alteration, renovation or restoration of, or similar services in relation to, residential complex;" 12. A "residential complex" has been defined in section 65 (91a) of the Finance Act as follows: "Residential Complex - Section 65(91a) "Residential Complex" means any complex comprising of - i) a building or buildings, having more than 12 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 layout of such premises is approved by an authority under any law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. The Bench examined the scope of "construction of complex" and the meaning of a "residential complex" under section 65(91a) of the Finance Act and the observations are as follows:- "It is abundantly clear from the above provisions that construction of residential complex having not more than 12 residential units is not sought to be taxed under the Finance Act, 1994. For the levy, it should be a residential complex comprising more than 12 residential units. Admittedly, in the present case, the appellants constructed individual residential houses, each being a residential unit, which fact is also clear from the photographs shown to us. In any case, it appears, the law makers did not want construction of individual residential units to be subject to levy of service tax. Unfortunately, this aspect was ignored by the lower authorities and hence the demand of service tax. In this view of the matter, we are also not impressed with the plea made by the appellants that, from 1-6-2007, an activity of the one in question might be covered by the definition of „works contract" in terms of the Explanation to section 65 (105)(zzzza) of the Finance Act, 1994 as amended. According to thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of more than 12 individual units on a large plot of land as a residential complex which we find is wrong and misconceived. Accordingly, we find that the show cause notice is not maintainable. Accordingly, we allow this appeal and set aside the impugned order. The appellant shall be entitled for consequential benefits in accordance with law." (emphasis supplied) 20. A Division Bench of the Tribunal in Shri A.S. Sikarwar vs CCE, Indore [Service Tax Appeal No. 871/2011 decided on 20.04.2012] also observed that service tax can be demanded only if the building concerned has more than 12 residential units in the building and such levy will not apply in cases where one compound has many buildings, each having not more than 12 residential units. This decision of the Tribunal was also assailed before the Madhya Pradesh High Court. Central Excise Appeal No. 31 of 2012 was dismissed on 01.08.2013 [Union of India vs Shri A.S. Sikarwar]. The observations are as follows : "It is not disputed by the learned counsel for the appellant that the respondent had performed the work of the house construction of 15 HIG at Laxmi Nagar, Ujjain in the financial year 2004-05 to 2006-07. He submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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