Custom, Excise & Service Tax Tribunal
Sima Engg. Constructions vs Cce, Trichy on 20 September, 2010
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
ST/S/196 to 200/2010 & ST/343 to 347/2010
(Arising out of Order in Original No. 1 to 5/2010 dated 19.03.2010 and passed by the Commissioner of Central Excise (Appeals), Trichy).
For approval and signature
Honble Ms. JYOTI BALASUNDARAM, Vice President
Honble Dr. CHITTARANJAN SATAPATHY, 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?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether the Honble Member wishes to see the fair :
copy of the Order.
4. Whether order is to be circulated to the :
Departmental Authorities? ____________________________________________________________
1. Sima Engg. Constructions : Appellant
2. S. Rajangam
3. Marimuthu Gounder & Sons
4. T.M. Saravanan
5. S. Kadirvel
Vs.
CCE, Trichy : Respondent
Appearance Shri V.S. Manoj, Adv., for the appellants Shri T.H. Rao, SDR, Ms. Indira Sisupal, JDR, for the respondent CORAM Ms. JYOTI BALASUNDARAM, Vice President Dr. CHITTARANJAN SATAPATHY, Technical Member Date of hearing : 21.09.2010 Date of decision : 21.09.2010 ORDER No._____________ Per: Jyoti Balasundaram, Heard both sides. The appellants under contract from the Tamil Nadu Police Housing Corporation Ltd.. (TNPHCL), which is a Tamil Nadu Government undertaking have constructed quarters for the Tamil Nadu police officials. Shri V.S. Manoj, Ld. Adv., appearing for the appellants states that as per the definition of the expression residential complex under Section 65(91a) of the Finance Act, 1994, it does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. He, also refers to the explanation below the said definition which states that Personal use includes permitting the complex for use as residence by another person on rent or without consideration. He argues that in view of the above definition and explanation, the quarters constructed by the appellants for the TNPHCL for occupation by the police personnel does not attract service tax for construction of the residential complex.
2. Ld. Advocate states that this plea was taken by the appellants in a letter addressed to the Jt. Commissioner of Service Tax., a copy of which is at page 117 to page 124 of the appeal papers. However, we find that this letter does not bear a date nor is it signed. Further, we do not find that the adjudicating Commissioner has anywhere dealt with this plea, nor is it indicated in the impugned order that such a plea was taken. Nevertheless, considering the fact that the impugned quarters were constructed for the Tamil Nadu Police personnel under a contract from the TNPHCL, the plea taken for exemption of such quarters from the purview of the service tax on the basis of the definition of residential complex and explanation relating to personal use deserves to be considered. Hence, after waiving the requirement of predeposit, we set aside the impugned orders and remand all the matters to the original authority for fresh decision. The appeallants shall be given adequate opportunity of hearing before passing fresh orders.
3. All the appeals are allowed by way of remand.
(Order dictated and pronounced in the open Court)
(Dr. CHITTARANJAN SATAPATHY) (JYOTI BALASUNDARAM)
TECHNICAL MEMBER VICE PRESIDENT
BB
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