C.C.E. Vs. FLOWMORE BUILDERS PVT. LTD.

JUDGEMENT

(1.) REVENUE is in appeal against the order of the Commissioner (Appeals), Central Excise and Service Tax, Kanpur dated 9.7.2008 whereby the respondent/assessee's appeal was allowed and the order of the adjudication authority, dated 13.6.2008 passed by the Additional Commissioner, Central Excise, Kanpur was reversed.

(2.) THE primary Authority confirmed service tax demand of Rs. 12,11,120/ - apart from interest and penalties on the ground that appellant during 16.6.2005 to 25.3.2006 had provided construction of residential complex service to several recipients but failed to obtain registration, file return or remit service tax due on the consideration received by way of advances for sale of residential apartments constructed as part of the complex. Aggrieved, the assessee preferred an appeal which was allowed by the Commissioner (Appeals). The learned Appellate Commissioner concluded that since the appellant was constructing on its own properties and thereafter selling residential units to third parties, construction of complex services cannot be said to have been provided to another person and thus leviable to tax under provisions of Section 65(105)(zzzh) read with Section 65(30a) and 65(91a) of the Finance Act, 1994. Reliance was placed by the ld. appellate Commissioner on Board Circulars dated 1.8.2006 and 23.8.2007 for this conclusion. Section 65(105)(zzzh) was subsequently amended by Finance Act, 2010 with effect from 1.7.2010 by introducing an Explanation. As per the Explanation, construction of complex intended for sale, wholly or partly by a builder or any person authorized by the builder before, during or after construction (except in cases where no sum is received from or on behalf of the prospective buyer by the builder or a person authorized by the builder before the grant of completion certificate by the authority competent to issue such certificate under any law for the time being in force) shall be deemed to be the service provided by the builder to the buyer.

(3.) IN the light of the decision of the Bombay High Court (supra), there being no contrary decision brought to our notice, the impugned order, of the Commissioner (Appeals) dated 9.7.2008 is seen to be impeccable, warranting no interference.