TMI Blog2023 (7) TMI 1021X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11555 / 2023 - Dated:- 24-7-2023 - HON BLE MR. RAMESH NAIR , MEMBER ( JUDICIAL ) And HON BLE MR. C. L. MAHAR , MEMBER ( TECHNICAL ) Shri PV Sheth , Advocate for the Appellant Shri Rajesh K Agarwal , Superintendent ( AR ) for the Respondent ORDER RAMESH NAIR : The issue involved in the present case is whether the appellant is liable to service tax on the service of construction of residential complex for Gujarat State Police Housing Corporation. 2. Shri PV Sheth, learned Counsel appearing on behalf of the appellant at the outset submits that the issue is no longer res-integra as in the various judgments, this Tribunal has held that construction of residential complex for Gujarat State Police Housing Corporation is not liable to service tax. He placed reliance on the following judgments:- (a) 2018 (10) GSTL 27 (Tri. Chennai) Brahma Developers vs. CCE, Tirunelveli. (b) 2011 (21) STR 115 (Tri. Ahmd.) Khurana Engineering Limited vs. CCE, Ahmedabad (c) 2022 (65) GSTL 471 (Tri. Ahmd.) Jagdish Pala vs. CCE ST, Rajkot. (d) 2022 (63) GSTL 289 (Guj.) Uni Well Exim vs. State of Gujarat (e) 2023 (5) TMI 340 CESTAT AHMEDABAD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the personnel working in jail department of the Government of Gujarat, the only point which requires to be considered in this case is whether the appellant herein has rendered services to a personnel who has not occupied the said dwellings. We find that an identical issue in respect of Tamilnadu Police Housing Corporation Ltd. case came up before the Tribunal in the matter of S. Kadirvel (Supra). In that stay order, the bench held as under:- 4. After considering the submissions, we have found prima facie case for the appellant inasmuch as it is not in dispute that the houses constructed by the Tamil Nadu Police Housing Corporation Ltd., are owned by the State Government and were allotted to police personnel by the Government. The Police Housing Corporation appears to have worked as an extended arm of the Government. Some of the decisions cited by the learned counsel are apparently supportive of his point that the houses that were constructed should be constructed to be in the personal use of the State Government. In this view of the matter, we grant waiver and stay against the impugned demand and connected penalties. It can be seen that the issue involved in the case in S Kad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause (30a) of Section 65 to submit that personal use, according to the definition includes permitting the complex for use as residence by another person on rent or without consideration. In view of the definition of Personal Use‟ in the definition of Construction of Complex‟ services, the services provided by the appellant is covered by exclusion, which provides that definition of service does not include the complex which is constructed by a person directly engaging any other person for designing or planning of the layout and the construction of such complex. In this case, the Govt. of India provides 80 flats to Income Tax department on rent and therefore, it is excluded from the definition of construction services. He also relies upon the reply given by the Central Board of Customs and Excise to National Building Construction Corporation Limited (NBCC), vide Letter No. F. No. 332/16/2010-TRU., dated 24-5-2010, in support of this contention. On the other hand, learned DR submits that it is not correct to say that service has been provided to Govt. of India directly. He submits that the land is owned by Income Tax department and Income Tax department has requested the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c Sector undertakings are not considered as Govt., departments and also cannot be considered as STATE . Further, learned DR also could not show whether there was any agreement between Income tax department and CPWD for the purpose of construction of residential complex. Invariably when two parties are independent entities, there would be an agreement. Absence of any agreement between CPWD and Income tax department also supports the case of the learned advocate. Further, since on behalf of the President of India contractors are entered into, agreements are entered into and bonds are accepted, Govt. of India is treated as Person . Therefore, we are unable to agree with the learned Commissioner when he says that the exclusion clause in the definition cannot be applied to the Govt. of India. For ready reference, definition of Construction of Complex Services is reproduced :- (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 preparing, wood and metal joinery and carpentry, fencing and railing, construction of sw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mand is time barred. Even if a view is taken that CPWD is to be treated as separate entity, in our opinion appellant would be justified to entertain a belief that CPWD and Income Tax department are to be treated as part of the Govt. of India and therefore, services provide by him would not be liable to service tax. Further, as submitted by the appellant in his submission, the agreement also provides that in case of liability of any tax, the service receiver is liable to pay. In these circumstances, the appellants had no reason to resort to suppression or mis-declaration of the facts to avoid payment of service tax since if the service tax was liable, as per the contract, CPWD was liable to pay service tax. Under these circumstances, invocation of extended time limit cannot be justified in this case. Therefore, penalties imposed under various sections of Finance Act, 1994 also cannot be upheld. 4. Another alternative submission made by the learned advocate was that the contract between the appellant and the CPWD was a works contract and VAT has been paid treating the same as works contract and therefore, no service tax was liable to be paid for the period prior to 1-6-2007. He ..... X X X X Extracts X X X X X X X X Extracts X X X X
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