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TMI Blog2023 (10) TMI 993X X X X Extracts X X X X X X X X Extracts X X X X ..... and has been raised under two heads - (i) Construction of Residential Complex service - Rs.42,53,300/- & (ii) Site formation and clearance, excavation and earth moving and demolition service - Rs.27,35,268/-. Further, equal amount of penalty has been imposed under Sec 78. Further Rs.10,000/- was imposed under Sec 69 read with Sec 71 for failure to get registered for site formation and clearance service and Rs.5,000/- under Sec 77(2) for failure to file returns with respect to site formation and clearance service. 3. The brief facts of the case are that the appellants have started a project for construction and sale of independent houses at Duvvada of Visakhapatnam in the year 2006-07 admeasuring 22.13 acres, developed the land and got the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement for sale of flats, it is treated to be as sale and not of provision of service. Similar is the decision in the case of Green View land and Buildicon Ltd vs CCE [2008 (11) STR 113 (Tri-Del)]; c) Further, construction of individual residential units does not fall under the purview of 'construction of complex service'. The same was the view held by Hon'ble Tribunal in the case of Macro Marvel Projects Ltd vs CST, Chennai [2008 (12) STR 603 (Tri-Chennai)] d) The Circular No. 108/02/2009 dated 29.1.2009 issued by the CBEC clarified that the construction of flat for the personal use by the buyer does not attract service tax. 5. They sought for clarifications on the following points: a) Whether the sale of individual houses cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers to the extent that they have not paid any amount towards service tax. 5.4. The learned Commissioner issued a SCN dated 09.03.2011 requiring the appellants to show cause as to why the refund claim of Rs.11,93,276/- should not be rejected. The proposal to reject the refund claim is on the following grounds: i) The construction of independent residential building in the approved layout having common facilities i.e., roads, drains, etc., and meant for sale of such each unit is within the scope of service tax under the residential complex service; ii) The documents required to be issued under Rule 4A of Service Tax Rules, 1994 were not submitted at the time of filing refund claim; iii) The service provider has also no enclosed any d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant as developer and the owners of land. It is relevant to mention here that Appellant has initially sold the plots in the housing scheme promoted by them duly approved by the Municipal Authority for construction of 151 individual houses with other amenities like colony roads, walkways, street lighting, bore wells, children playpen, park, etc. As per the Development & Construction Agreement, the Appellant was to construct the house for land owners to whom the land was sold vide separate sale deed. The development agreement further provides that the land owner shall pay an amount of Rs.10 lakhs per acre towards development and providing of various amenities like roads, drains, electric poles, greenery, parks, landscapes, children p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the SCN is bad for invocation of extended period of limitation which is evident on the face of records. Admittedly, Appellant was registered with the Department and was paying admitted taxes and filing periodical returns. Further, it was the Appellant that for the first time raised query with the Department for clarification as to their tax liability vide letter dated 07.10.2009 and accordingly, the SCN dated 24.10.2011 is clearly by way of change of opinion. 9. Learned Counsel further urges that so far the demand under 'Construction of residential complex service' is concerned, the same being prior to 01.06.2010, no longer survives, in view of the explanation added vide Finance Act, 2010, w.e.f. 01.07.2010 and as clarified by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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