9911796707
TMI Blog2025 (2) TMI 480X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority confirming the demand of service tax made for the period January 2009 to March 2010, under Section 73(2) of the Finance Act, 1994 (Act in short) along with appropriate interest under Section 75 of the Act and the penalties imposed under Section 77(2) and Section 78 of the Act. 2. The facts in brief are that the appellant is a holder of service tax registration for commercial or industrial construction services and construction of residential complex services and was engaged in the construction of residential apartments. On verification of the records furnished by the appellant the departmental officers observed that the appellant had constructed a multi storied residential building comprising more than 12 units, known as " THE SUM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009, any service provided by the promoter/builder/developer in connection with construction of residential complex till the execution of sale deed would be in the nature of self service and would not attract service tax and the said circular has clarified that construction service provided by the Builder/Developer would not be taxable prior to 01.07.2010 and the same was applicable in the instant case as all the activities of construction was undertaken prior to 01.07.2010 as conceded in the show cause notice itself. It is the submission of the counsel that the issue stands settled in the appellant's favour in view of numerous orders of this Tribunal and places reliance on the decision in the Final order No.40711-40712/2021 dated 15.01.202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in the case of Real Value Promoters (supra) had analysed the issue whether the demand under construction of residential complex services is sustainable in services which are of composite in nature. After introduction of Works Contract Services, the demand can be made only under Works Contract Services in the case of construction services which are composite in nature. The relevant paragraphs of the said discussion which brings out in detail the issue is as under:- "3.5 The issue as to whether a composite contract involving provision of service as well as transfer of property in goods could be covered under CICS and CCS from the date of introduction of service tax levy on such services was, being litigated upon which was finally settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assesse was not at all put on notice on the new category of taxable service. These decisions were based on various decisions of higher appellate forums, where it has been held that the show cause notice is the foundation of allegations and the adjudication should be limited to the allegations. Further, as per Section 65 A of the Act, classification of service shall be based on the specific entries and the more specific description has to be preferred. In this connection, he invited attention to CBEC's Circular 128/10/2010 Dt. 24.08.2010. 3.8 If show cause notices are issued demanding service tax under CICS / CCS, on composite contracts, involving transfer of property in goods, for the period post 01.06.2007, the said demands of service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cited supra, we hold as under:- a. The services provided by the appellant in respect of the projects executed by them for the period prior to 1.6.2007 being in the nature of composite works contract cannot be brought within the fold of commercial or industrial construction service or construction of complex service in the light of the Hon'ble Supreme Court judgment in Larsen & Toubro (supra) upto 1.6.2007 b. For the period after 1.6.2007, service tax liability under category of 'commercial or industrial construction service' under Section 65(105)(zzzh) ibid, 'Construction of Complex Service' under Section 65(105)(zzzq) will continue to be attracted only if the activities are in the nature of services' simpliciter. c. For activities o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , M/s. Jain Housing and Construction Ltd v The CST, Chennai, 2023 (2) TMI 1044-CESTAT, Chennai which stood affirmed by the Hon'ble Supreme Court in The Commissioner of Service Tax v M/s. Jain Housing and Construction Ltd, 2023 (9) TMI 816 (SC), reiterate the aforesaid position in law as crystallised in the decision in M/s. Real Value Promoters Pvt Ltd, as reproduced in the Final Order in the appellant's own case cited supra. 8. Following the aforementioned decisions, including the one in the appellant's own case, we hold that the impugned order in appeal upholding the impugned order in original of the adjudicating authority confirming the demand under construction of complex service together with demand of appropriate interest and penaltie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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