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TMI Blog2025 (1) TMI 1376X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Company India Pvt Ltd (hereinafter referred to as the Appellant) are engaged in providing the services of 'Construction of Complex Service' (CCS) and 'Works Contract Service' (WCS). Based on the investigation, the department noticed that while they have paid Service Tax till March, 2008, though not having filed any ST3 return, they have not paid Service Tax for the period April, 2008 to June, 2010. It was also noticed that they have actually provided WCS though they have wrongly claimed the said service as CCS. It was also noticed that they have rendered CCS in two projects viz., 'Hill Paradise-I' and 'Green Fields' executed on development basis during the period 01.10.2006 to 30.05.2007. They have also undertaken projects on their own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e owner enters into contract for construction of residential complex with a promoter/builder/developer, who himself provides service of design, planning and construction and after such construction, the ultimate owner receives such property for his personal use, then such activity would not be subjected to Service Tax, because this case would fall under the exclusion provided in the definition of 'residential complex'. This issue is clearly covered by the decision of Modi Ventures Vs CST, Hyderabad of this Bench vide Final Order No. 30887/2020 dt.03.03.2020. Para 10 of this order is relevant and is reproduced below. "10. The undisputed fact is that appellant had entered into two contracts one for sale of land and the second construction a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the case and also relying on the judgment in the case of LCS City Makers Pvt Ltd Vs CST, Chennai [2013 (30) STR 33 (Tri-Chennai)], the activities of the appellant would be chargeable to Service Tax under WCS and since the circular relied upon by the Adjudicating Authority only clarifies that no Service Tax is applicable to CRCS up to 01.07.2010 but not to WCS and therefore, the service was not exempt. Therefore, the only ground is that in the facts of the case, the activities were in the nature of WCS and not CRCS and that the circular referred to is only applicable to CRCS and not to WCS and hence, Service Tax is payable. Since both issues are interrelated, we intend to take up both the appeals together for better appreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve of whether the nature of construction service is simpliciter or in the nature of WCS, no Service Tax is leviable on them for the period prior to 01.07.2010. Therefore, the dropping of demand by the Adjudicating Authority for the period prior to 01.07.2010 is correct. For the period beyond 01.07.2010, their main argument is that since the Adjudicating Authority himself has confirmed the demand under different heading than what was proposed in the SCN, the demand itself is not tenable on this ground alone. 9. We also note that in the impugned order, the Commissioner has examined the issue as to what would be the proper classification in the facts of the case. He examined it from the angle of WCS as well as CRCS. Thereafter, he concluded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond 01.07.2010. On going through the appeal memorandum, we find that they have mostly stated that for the Service Tax demand beyond 01.07.2010, in terms of explanation inserted in Section 65(105)(zzzh), there should be a finding that appellants have received some amount before the grant of completion certificate by the authority. They have also admitted that there was no construction agreement with the client. They have also taken a plea that if at all there is any levy of Service Tax, it would be only on the value of construction for the unfinished portion of the flat and not on the amounts received after 01.07.2010 as held by Hon'ble Supreme Court in the case of Larsen & Toubro Ltd Vs State of Karnataka [2014 (1) SCC 708]. They have also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring it as part of WCS and by holding that this is more specific and at no point of time he has held that there is no element of WCS in the said CRCS. In other words, he has not held, in the case of appellant, that it was CRCS simpliciter rather he has held that it is CRCS, which is very much in the nature of WCS. We find that there is some merit in the departmental appeal as well as appellant's claim. However, the best way would be to remand the matter to the Commissioner to decide the matter afresh for the demand for the period beyond 01.07.2010. While doing so, he shall go by the admitted facts and evidence on record to decide whether there is any exclusion or exemption available for the said service (WCS/CRCS) in the given set of facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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