TMI Blog2023 (1) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... residential premises cannot be sustained and the same is set aside. Difference in the receipts towards exempted services shown in ST-3 return - HELD THAT:- It is seen that the impugned order does not contain adequate explanation for the said exempted services - The appellant has claimed that the variation is on account of inclusion of amount in service tax gross value/ VAT amount/ booking of TDS/ declaration of receipt entry - there are no mention of these facts in the impugned order nor does the impugned order contain any examination of this data. It is doubtful if this data was submitted before the original adjudicating authority - matter remanded back to original adjudicating authority to examine the reconciliation produced by the appellant, in these appeal papers decide afresh. Appeal allowed in part and part matter on remand. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. RAJU Ms. Dimple Gohil , Advocate appeared for the Appellant Shri S. S. Vikal , Assistant Commissioner ( Authorized Representative ) for the Respondent ORDER RAJU This appeal has been filed by S V J Innovabuild Pvt. Ltd. agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t elements, a view has to be taken on the basis of the facts and circumstances of each case as to whether the service provider has made a single overall supply or a supply of different services which are to be treated differently. ....................... Circular No. 110/4/2009-ST dated 23.02.2009 1............ 2. Commercial or industrial construction service [section 65(105)(zzq)] specifically excludes construction or repairs of roads. However, management, maintenance or repair provided under a contract or an agreement in relation to properties, whether immovable or not, is leviable to service tax under section 65(105)(zzg) of the Finance Act, 1994. There is no specific exemption under this service for maintenance or repair of roads etc. Reading the definitions of these two taxable services in tandem leads to the conclusion that while construction of road is not a taxable service, management, maintenance or repair of roads are in the nature of taxable services, attracting service tax. 3. The next issue requiring resolution is the types of activities that can be called as construction of road as against the activities which should fall under the cat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T Ahm Natvar Const. Co. 2023 (4) TMI 438 CESTAT Ahm Nithesh Estates Ltd. 2015 (40) STR 815 CESTAT Bang. CCE Pudhchery vs Lanco Tanjore Power Co Ltd. 2018 (3) TMI 1010-Cestat Chennai CCE vs Mall Enterprises 2016 (41) STR 119 CESTAT Bom. 7. Another argument raised in the impugned order relates to the composite nature of the contract of construction of residential premises and roads. It is seen that Tribunal in the case of Nithesh Estate Limited has observed as follows: 7. We have considered the submissions made by both the sides. The relevant definitions during the relevant period are as under : Section 65(30a) 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 applications or fittings and other similar services, or (c) repair, alteration, renovation or restoration of, or similar services in relation to, residential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstructing residential complex for Central Government officers. Further, the residential complexes so built are intended for the personal use of the GOI which includes promoting the use of complex as residence by other persons (i.e. the Government officers or the Ministers). As such the GOI is the service receiver and NBCC is providing services directly to the GOI for its personal use. Therefore, as for the instant arrangement between Ministry of Urban Development and NBCC is concerned, the Service Tax is not leviable. It may, however, be pointed out that if the NBCC, being a party to a direct contract with GOI, engages a sub-contractor for carrying out the whole or part of the construction, then the sub-contractor would be liable to pay Service Tax as in that case, NBCC would be the service receiver and the construction would not be for their personal use. It can be seen that if the land owner enters into a contract with a promoter/builder/developer who himself provided service of design, planning and construction and if the property is used for personal use then such activity would not be subject to service tax. It is quite clear that C.B.E. C. also has clarified that in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal Hon ble High Court of Punjab Haryana Court in the case of CCE vs Mayfair Resorts 2011 (22) STR 263 (P H) and in case of Shubham Electricals 2015 (40) STR 1034. Learned counsel also argued that entire proceedings are barred by limitation ad the notice was issued only on 24.10.2013 for the period 2008-2009, 2009-2010 and 2010-2011. 11. As regards the issue regarding the difference in the receipts towards exempted services shown in ST-3 return, it is seen that the impugned order does not contain adequate explanation for the said exempted services. 12. A perusal of the appeal shows that in Para C-3, the appellant has given detailed reconciliation of the difference in the figures in ST-3 vis-a-vis actual receipt. The appellant has claimed that the variation is on account of inclusion of amount in service tax gross value/ VAT amount/ booking of TDS/ declaration of receipt entry. We do not find any mention of these facts in the impugned order nor does the impugned order contain any examination of this data. We are not even aware if this data was submitted before the original adjudicating authority. In view of above, we set aside this demand and remand the matter back to ori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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