Ld. Counsel Shri Pahwa argues that the second category of work carried out with M/s. Unitech Machines Ltd., Gurgaon is exhibited by para 34 of the adjudication order at page 94. In this case, the appellant acted as a sub-contractor and tax liability has been discharged by the principal contractor. According to him such aspect remains undisputed by Revenue, in which no liability arose. But this is subject to scrutiny in the course of regular hearing.
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST BLOCK NO.2, R K PURAM, NEW DELHI-110066
Service Tax Stay Application No. ST/S/1839/2010
Service Tax Appeal No. ST/925/2010
M/s AVN BUILD TECH (P) LTD
Date of Decision: 4.4.2011
Service Tax – Stay/Dispensation of pre-deposit – Construction of complex service – The applicant has no layout plan to examine the contentions that the activity carried out by them does not come under the purview of residential complex – Pre-deposit ordered.
STAY ORDER NO.ST/243/2011
Per: D N Panda:
Ld. Counsel Shri S.K.Pahwa moving the stay application submits that there were four activities carried out by the appellant as appearing in para 7 of the adjudication order at page 78. The last category of work carried out by the appellant with M/s.Alfa Toyo Ltd., Faridabad did not give rise to demand. The appellant has discharged the tax liability on that category of work and only contests penalty. Appellant should take note of this and Revenue should also take note of this and place while appeal is finally heard to consider penalty aspect since the appellant does not press on tax demand. Shri Pahwa has also submitted that if at all there shall be liability, there shall be concession available in respect of materials used. That shall be excluded from the purview of service tax.
2. Ld. Counsel Shri Pahwa argues that the second category of work carried out with M/s. Unitech Machines Ltd., Gurgaon is exhibited by para 34 of the adjudication order at page 94. In this case, the appellant acted as a sub-contractor and tax liability has been discharged by the principal contractor. According to him such aspect remains undisputed by Revenue, in which no liability arose. But this is subject to scrutiny in the course of regular hearing.
3. According to Shri Pahwa the third category of work carried out by the appellant was the commercial and industrial construction services with M/s. Eros City Developers Pvt. Ltd., New Delhi as has been alleged by the Revenue. The demand that arose out of adjudication of such work case is nearly Rs.80,000/-.
4. So far as the first category of work is concerned that was executed with M/s. R.C. Sood & Co. Developers Pvt. Ltd., New Delhi According to Shri Pahwa that work has been brought to tax under the category of the taxable service relating to construction of complex. According to ld. Counsel, construction of residential complex although is covered by the category “construction of complex”, the present appellant has not carried out that activity. A combined reading of section 65 (105) (zzzh), 65(30a) and section 65 (91a) does not permit the work carried out by the appellant to be a service provided for the “construction of residential complex”. Substantial demand was raised on this count. According to him the appellant is not liable to tax at all because no residential complex was constructed and there was no facility provided in the premises.
5. Ld. DR supports the order of the authority below arguing that a reasoned order was passed reflecting the amount and the charge in para 38.2. So also he invites attention to para 38.2 of the order to submit that proper opportunity was given to the appellant to explain its case. But the party failed to provide the details.
6. Heard both sides and perused record. For the time being we express no opinion on the penalty aspect argued by the appellant without hearing the appeal in detail against the conclusion reached by the Authority below in respect of the work carried out with M/s. Alfa Toyo Ltd., Faridabad. However having been submitted that there is no tax dispute on such contract, the appeal stands dismissed on this limited count of tax levy on such contract and to the extent the demand arose in the adjudication order for such work stands confirmed leaving the penalty aspect only for hearing in appeal.
7. We have considered the submissions elaborately made by Shri Pahwa on the issue of tax ability of residential complex which was the activity carried out by the appellant with M/s.R.C. Sood & Company Developers Pvt. Ltd. We have also gone through the respective statutory provision which has been placed by Shri Pahwa in this regard. When we look into the taxable entry covered by section 65 (105) (zzzh) we find that the expression “in relation to” construction of complex, appears therein. Accordingly, we were more curious to find out the nexus of activity for serving the purpose of construction of complex. Secondly when we read section 65 (91a) of the Finance Act 1994 we noticed that the said section clearly throws light on certain cumulative features provided therein. The cumulative features relate to the location, premises and different facilities provided in the lay out to characterise the activity as commercial construction of residential complex service. Shri Pawha has no layout plan to examine his contentions to consider his prayer that the activity carried out by the appellant does not come under the purview of residential complex. Prima facie, we are satisfied that Revenue’s interest shall be prejudiced, if no pre- deposit is called for at this interim stage. We, therefore, direct the appellant to deposit an amount of Rs.10.00 Lakhs within four weeks and make compliance on 23.5.2011. Subject to compliance, realization of the balance demand shall be stayed during pendency of the appeal.
(Dictated & Pronounced in the open Court).