Custom, Excise & Service Tax Tribunal
Mohtisham Complexes Pvt. Ltd vs Commissioner Of Central Excise And ... on 9 February, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: ST/MISC/551/2011 in ST/1390/2010-DB, ST/2726/2010-DB Appeal(s) Involved: ST/1390/2010-DB, ST/2726/2010-DB [Arising out of Order-in-Original No. 04/2010 dated 29/03/2010 passed by the Commissioner of Central Excise, Mangalore] [Arising out of Order-in-Original No. 15/2010 dated 21/09/2010 passed by the Commissioner of Central Excise & Service Tax, Mangalore] For approval and signature: HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER 1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? No 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes Mohtisham Complexes Pvt. Ltd. 6th & 7th Floor, Empire, M.G. Road, Mangalore 575 003 Appellant(s) Versus Commissioner of Central Excise and Service Tax, Mangalore 7th Floor, Trade Centre, Bunts Hostel Road, Mangalore 575 003 Karnataka Respondent(s)
Appearance:
Shri Anirudha R.J. Nayak, Advocate # 152, Race Course Road, Bangalore 560 001 Karnataka For the Appellant Shri Mohd Yusuf, AR For the Respondent Date of Hearing: 09/02/2016 Date of Decision: 09/02/2016 CORAM:
HON'BLE SMT ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK K. ARYA, TECHNICAL MEMBER Final Order Nos. 20216-20217 / 2016 Per : ARCHANA WADHWA After hearing both the sides we find that as per the appellant, he is a developer/promoter carrying on developing his own properties as also by entering into Joint Venture agreement with the others who own properties. Service tax stands confirmed against the appellant in both the appeals for the period prior to 31.03.2009 by treating them as providing services under the category of Commercial or Industrial Construction Services as also under Construction of Residential Complex Services.
2. As per the learned advocate appearing for the appellant, they wrongly got themselves registered with the Service Tax Department under a belief that they are providing Commercial or Industrial Construction Services. However when the demands were raised against them by way of issuance of show-cause notices on the alleged undervaluation of the services, they took a categorical stand that they are only developers and as such are not covered by the Service Tax Law. In spite of that the demand was confirmed and subsequently challenged before the Tribunal, who remanded the matter under certain directions.
3. The impugned order stands passed in de novo proceedings wherein the Commissioner has again confirmed the demands on the issue of undervaluation, in terms of the categories of Commercial or Industrial Construction Services or the Construction of Residential Complex Services.
4. The grievance of the appellant is that they are developers and the definition of Commercial or Industrial Construction Services was amended w.e.f. 01.07.2010, by including the deeming provision in the definition so as to cover the developers also. As such it is his contention that the appellant being a developer, was under no liability to pay service tax prior to 01.07.2010. For the above purpose he relies upon the Tribunals decision in the case of Krishna Homes Vs. CCE, [2014 (34) S.T.R. 881 (Tri.-Del.)] and Maharashtra Chamber of Housing Industry Vs. Union of India [2012 (25) S.T.R. 305 (Bom.)]. He further submits that though the matter was remanded to the Commissioner for passing a fresh order in the light of the observations made by the Tribunal in the earlier order, the adjudicating authority has passed verbatime the same order and has not taken into consideration the various issues raised by them. However he submits that the Commissioner has squarely held the appellant to be a developer and there is a clear finding to that effect, but still has not extended the benefit to the appellant and has wrongly confirmed the demand by holding that they fall under the service category of Commercial or Industrial Construction Services w.e.f. 01.07.2010.
5. After hearing the learned DR, we find that the legal issue is quite clear. Prior to 01.07.2010, a developer was under no liability to pay service tax under either of the categories adopted by the Revenue. The Tribunals decisions relied upon by the learned advocate are proper and appropriate. As such the only question of fact required to be examined is as to whether the appellant was a developer during the relevant period, which is prior to 01.07.2010, or not. This factual position can be arrived at after examining the various contracts and the documentary evidences. Such an exercise can be done at the original adjudication level, for which purpose we set aside the impugned order and once again remand it to the Commissioner for de novo decision in the light of the observations made by us as above as also in the light of the declaration of law by the Tribunal as also the other Courts, referred supra. Appeal is thus allowed by way of remand. We leave all the other alternative pleas open for the Commissioner to decide afresh.
(Order pronounced and dictated in open court) (ASHOK K. ARYA) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER iss