Shalin Engineers Private Limited vs C.S.T.-Service Tax - Ahmedabad

Ramesh Nair, Member (J)

This appeal is directed against order-in-appeal passed by Learned Commissioner (Appeals) whereby the demand under construction service for the year 2009-2010 and 2010-2011 was upheld. As per the department it is a Commercial or Industrial Construction and Construction of residential complex for Income Tax Department and Central Administrative Tribunal. The demand was also made by invoking the extended period. The appellant provided the construction service in the capacity of sub-contractor.

Shri Rohan Thakkar, Learned Chartered Accountant appearing on behalf of the Appellant submits that the construction of Income Tax building and the Staff Quarters for Central Administrative Tribunal was provided to the Government and it does not fall under the category of Commercial or Industrial Construction Service, therefore, the same is not liable to service tax. Moreover, the appellant have provided the construction service as a sub – contractor. For this reason also the demand being made for extended period is not sustainable on the ground of limitation also. He placed reliance on the following judgments:-

• R B Chy Ruchi Ram Khattar & Sons vs. CST – 2015 (2) TRI 971 (Tri. Delhi)

• Khurana Engineers Ltd vs. CST – 210 (11) TMI 81 (Tri. Ahmedabad)

• B Rama Rao &Co. vs. CST 2017 (7) TMI 798 ( Tri. Hyderabad)

• Rama Construction Co. vs. CCE – 2018 (9) TMI 917 (Tri. Delhi)

• ABM Civil Ventures Pvt Ltd vs. CCE - 2019 (2) TMI 1494 (Tri. Bang)

Shri Anoop Kumar Mudvel, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the finding of the impugned order.

We have carefully considered the submission made by both sides and perused the records. We find that there is no dispute that the appellant had provided the construction service in respect of construction of building belonging to Income Tax Department and Construction of staff quarters for Central Administrative Tribunal. Undisputedly, the buildings are government building and not commercial building, therefore, the service neither fall under Commercial or Industrial Construction Service nor under construction of residential complex. The judgments relied upon by the appellant directly supports their case, therefore, following the judgments cited by the appellant, the demand in the present case is not sustainable.

4.1 Moreover, the appellant have provided the service in the capacity of sub- contractor. In catena of case laws, this Tribunal has taken a view that since the issue whether sub- contractor is liable to pay the service tax or otherwise was under litigation and it was finally decided by the larger bench in the case of M/s. Melange Developers Pvt Ltd – 2020(33) GSTL 116 (Tri.- LB) , in view of that larger bench judgment there cannot be any malafide intention or suppression of fact with intent to evade the service tax on the part of the appellant. Therefore, we are of the view that the demand is not sustainable on the ground of limitation also.

Accordingly, the impugned order is set aside. Appeal is allowed.