9911796707
TMI Blog2024 (12) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... o imposed equal penalty under Section 78 of the Finance Act, 1994. The Adjudicating Authority has, inter alia, held that the appellants have provided 'Construction of Residential Complex service' (CRCS) covered under Section 65(105)(zzzh) of the Finance Act, 1994 during the period June, 2005 to September, 2010 and therefore, liable for payment of Service Tax. 2. The facts of the case, in brief, are that the appellants executed one project viz., Bhanu Township, consisting of 490 residential units, in which they had share of 274 flats and that as per the terms and conditions stipulated in the Development Agreement cum General Power of Attorney, they executed the sale deeds in favour of the buyers with respect to their portion. Admittedly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sustainable. Moreover, in view of Circular No. 151/2/2012-ST dt.10.02.2012, no service tax is leviable for the period prior to 01.07.2010 irrespective of whether it is CRCS or WCS, as has been held in various judicial pronouncements including Kolla Developers & Builders Vs CCCE & ST, Hyderabad-II [2018 (11) TMI 164 - CESTAT Hyderabad] and Pragati Edifice Pvt Ltd vs CCCE & ST, Visakhapatnam-I [Final Order No. A/31010-31011/2019 dated 18.09.2019]. Therefore, on this count also, it is not sustainable. 6. For the period post 01.07.2010, his argument is that since admittedly the classification of service being provided by them was under WCS, which has not been alleged in the SCN and therefore, the confirmation of demand under wrong classifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, but when it also involves both materials and services, then it is more appropriately classifiable under WCS and not under CRCS. Moreover, it is settled position that WCS came into existence only w.e.f. 01.07.2007 and therefore, the classification of the services would be under WCS. Therefore, even for the period prior to 01.07.2007, the activities would be in the nature of WCS only as it involves material portion as well and therefore, its classification under CRCS would be incorrect. Therefore, the demand made and confirmed under the category of CRCS prior to 30.06.2007 is also not sustainable, in view of the settled law. 11. We also note that the issue is no longer res integra as it is settled in the case of CCCE & ST, Visakha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 is concerned, it is observed that the SCN has alleged that the services provided by them were in the nature of CRCS whereas, in view of the factual matrix, it is observed that they are in the nature of WCS and having regard to the judgment of Hon'ble Supreme Court in the case of CCCE Vs Larsen & Toubro and others [2015 (8) TMI 749 (SC)], WCS cannot be charged to Service Tax prior to 01.07.2007 and it also cannot be subjected to levy when the allegation itself is under the wrong heading i.e., CRCS. Therefore, on this count itself, no demand is sustainable for the period beyond 01.07.2010 up to September, 2010. 13. Therefore, in view of the discussions and observations in above paras, the Order of Commissioner No. 44/2011 dt.18.11.2011 is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
