TMI Blog2024 (2) TMI 1309X X X X Extracts X X X X X X X X Extracts X X X X ..... ature of WCS, and since there was no appropriate head i.e., WCS, available prior to 01.06.2007, the demand for this period would fall on this ground itself. In fact, the Board has also clarified vide Circular No. 151/2/2012-ST dt.10.02.2012, that for the period prior to 01.07.2010, construction service provided by the builder/developer will not be taxable in terms of earlier Board Circular No. 108/02/2009-ST dt.29.01.2009. In other words, there would be no liability. When SCN has proposed demand under WCS post 01.06.2007, whether that demand will still sustain or otherwise? - HELD THAT:- In this case, the SCN has proposed CRCS for the period up to 01.06.2007 but for the same activity, the services have been considered as WCS for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... threshold but it can also be applied in the event of any change in classification due to change in definition of existing service or introduction of new services, unless otherwise barred by the Act itself. Therefore, once the service is rightly covered under WCS post 01.06.2007, the next question is whether they will be entitled for exemption under Circular No.151/2/2012-ST dt.10.02.2012. Learned AR has vehemently opposed that Board Circular clarifying that no taxability on construction service for the period prior to 01.07.2010, would only be applicable in respect of construction services falling under clauses (zzq) (zzzh) of Sec 65(105) and not in respect of WCS. Therefore, there is no exemption from service tax for WCS, which is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the relevant period. Revenue has also relied on certain case laws in support of the fact that the services under CRCS have been brought under the umbrella of WCS with effect from 01.06.2007, as has been held in the case of Alstom Projects India Pvt Ltd vs CST [2011 (23) STR 489 (Tri-Del)] as well as in the case of NCC Ltd vs GOI [2010 (19) STR 321 (AP)]. 3. Revenue has also relied on the fact that notwithstanding the fact that explanation was added with effect from 01.07.2010 to the definition of CRCS, the service to be provided is taxable in terms of Sec 65(105)(zzzza) as clarified by the Board vide their Circular DOF No. 334/1/2010-TRU dt.26.02.2010. 4. In brief, the SCN was issued to the Assessee based on certain data available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate head i.e., WCS, available prior to 01.06.2007, the demand for this period would fall on this ground itself. In fact, the Board has also clarified vide Circular No. 151/2/2012-ST dt.10.02.2012, that for the period prior to 01.07.2010, construction service provided by the builder/developer will not be taxable in terms of earlier Board Circular No. 108/02/2009-ST dt.29.01.2009. In other words, there would be no liability. 6. The next issue would be as to when SCN has proposed demand under WCS post 01.06.2007, whether that demand will still sustain or otherwise. In this regard, the first issue would be whether the department can change the classification suo moto than what has been proposed in the SCN or otherwise. In this case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner has examined this aspect in OIO, specifically in Para 51.6, wherein relying on the provisions under Sec 65A(2), which relates to manner in which classification is to be effected when, prima facie, service is classifiable under two or more sub-clauses of clause (105) of Sec 65. He found that SCN has not elaborated upon the reason for changing classification from CRCS to WCS and held that even otherwise, the most specific description for the activity would be CRCS rather than WCS, since the basic activity of Assessee is in relation to construction of flats/apartments/villas as builder/developer. Commissioner has also relied on Sec 65A to the effect that when a service cannot be classified in the manner specified in clause (a) or clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c); or (e) turnkey projects including engineering, procurement and construction or commissioning (EPC) projects; 10. This service will include any contract where transfer of property in goods is involved and which is leviable to tax as sale of goods and it is for the purpose of carrying out, inter alia, construction of new residential complex or a part thereof. Juxtaposing this with the definition of CRCS as long as services are in relation to residential complex, it will cover the said service. It is to be understood in this context that this could be even a service simpliciter where no material is involved or transfer of property in goods is not involved. However, it is not in dispute that there was transfer of property in go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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