Goyal & Co Construction Pvt  Ltd VERSUS C.S.T.-Service  Tax – Ahmedabad

Customs, Excise & Service Tax

 Appellate Tribunal West Zonal

Bench At Ahmedabad

 

REGIONAL BENCH-COURT NO. 3

Service Tax Appeal No. 13056 of 2014- DB

(Arising out of OIO-AHM-SVTAX-000-COM-006-14-15 dated 30/05/2014 passed by Commissioner of Service Tax-SERVICE TAX – AHMEDABAD)

 

Goyal & Co Construction Pvt Ltd

VERSUS

C.S.T.-Service Tax – Ahmedabad 

APPEARANCE:

Shri, Hardik Modh & Amit Laddha, Advocate appeared for the Appellant Shri Ajay Kumar Samota, Superintendent (AR) for the Respondent

CORAM: HON’BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON’BLE MEMBER (TECHNICAL), MR. C.L.MAHAR

 

Final Order No. 11580/2023

DATE OF HEARING: 18.07.2023 DATE OF DECISION: 24.07.2023

 

RAMESH NAIR

 

By the impugned order demand of Service Tax amounting to Rs. 13,55,364/- was confirmed under Commercial or Industrial Construction Service (for the year 2005-06) and the demand of Rs. 57,068/- was confirmed under Renting of Immovable Property Services (for the year 2009-10)

 

2. Shri Hardik Modh, Learned Counsel appearing on behalf of the appellant submits that the show cause notice has raised the demand, under the head of construction of residential complex services, whereas in the impugned order, the demand was confirmed under different head i.e. Commercialor Industrial Construction Services. It is a submission that in the

 

adjudication order, the classification which was proposed in the show cause notice cannot be changed. Therefore, the demand under Commercial or Industrial Construction Services is liable to be set aside on this ground alone.

 

• Without prejudice, he further submits that the appellant have provided the construction service along with material, for this reason only in the show cause notice the demand was raised under Construction of Residential Complex. In this fact the service provided by the appellant falls under works contract service, on which the Service Tax was levied with effect from 01.06.2007. Accordingly, the demand for the period 2005-06 is not sustainable. As regard the demand of Rs 57,068/- on renting of immovable property. He submitted that the demand was raised during audit of the appellant’s records. Therefore, there is no suppression of fact on the part of the appellant. Accordingly, this demand as well as the demand under Commercial or Industrial Construction Service is hit by limitation also. He placed reliance on the following Judgments and board circular:

 

• Circular:108/2/2009-S.T. dated 29-Jan-2009
• Circular:151/2/2012-S.T. dated 10-Feb-2012
• BenFoundation  Ltd. Versus Commissioner of C.EX.& S.T., Chennai

-2019 (31) G.S.T.L. 434 (Tri. Chennai)

 

• National Building Construction Corporation Ltd. Versus Commissioner Of Central Excise, Shillong- 2022 (66) G.S.T.L. 476 (Tri. – Kolkata)
• JagdishPala Versus Commissioner of  EX. & S.T., Rajkot -2022 (65)

G.S.T.L. 471 (Tri. – Ahmd.)

 

• SaumyaConstruction  Ltd. Versus C.S.T., Ahmedabad – 2016 (46)

S.T.R. 723 (Tri. – Ahmd.)

 

• TamilNadu Housing Board Versus Collector Of Central Excise, Madras – 1994 (74) E.L.T. 9 (SC)
• PunjLloyd  Versus Commissioner of C. EX. & S.T., Rohtak 2015

(40) S.T.R. 1028 (Tri. – Del.)

 

 

 

3. Shri Ajay Kumar Samota, Learned Superintendent (AR) appearing on behalf of the revenue reiterates the findings of the impugned order.

 

4. Oncareful consideration of the submission made by both the sides and perusal of records, we find that it is an admitted fact that the show cause notice has proposed the demand of Service Tax under construction of residential complex. However, in the impugned order the demand was confirmed under Commercial or Industrial Construction Service. Thus, the impugned order has travelled beyond the scope of show cause notice.

 

 

• We are of the view that the show cause notice cannot be rectified by way of Adjudication Order passed in such show cause notice, therefore, on this ground alone demand is not sustainable. Moreover, the period involved is2005-06, even if it is assumed that the appellant had provided commercial or industrial construction service but undisputedly the service was provided along with material, therefore, it is falling under works contract Service. The levy of Service Tax on Works Contract was brought under the statute only with effect from 01.06.2007. The Hon’ble Supreme Court in the case of CCE L & T Ltd.- 2015 (39) S.T.R. 913 (S.C) clearly held that if the nature of the services is of works contract, the same is not levy to service prior to 01.06.2007.

 

• As regard the demand of Rs 57,068/- under head of renting of immovable property, we find that the levy of service Tax on renting of immovable property was not free from doubt, there were contraryjudgments on this issue and finally the matter seized by the Hon’ble Supreme Court. Therefore, the issue involved is of interpretation of the definition of renting of immovable property service. Moreover, the demand was raised on the basis of scrutiny of the documents of the appellant during the audit. This also shows that appellant have no intention to hide their transaction with intent to evade payment of Service Tax, therefore, in absence of any suppression of fact, fraud or collusion etc. the demand for the extended period cannot be sustained. Therefore, this demand under renting of immovable property service is set aside on the ground of

 

5. As a result, the impugned order stands modified to the above 

 

The appeal is allowed.

 

(Pronounced in the open court on 24.07.2023)

 

 

RAMESH NAIR MEMBER (JUDICIAL)

 

C.L.MAHAR MEMBER (TECHNICAL)