Page 146 - GSTL_11th June 2020_Vol 37_Part 2

232 GST LAW TIMES [ Vol. 37
Tax demand having not been proposed in show cause notice under that catego-
ry, the same not sustainable even after the said date - Sections 65(30a), 65(91a)
and 65(105)(zzzza) of Finance Act, 1994. [para 7]
Construction of roads in complexes of residential flats exempted under
Notification No. 17/2005-S.T. - Contention that the said roads are not open to
general public and thus, not eligible to exemption, not acceptable as said noti-
fication the nowhere provided that roads other than public roads liable to be
taxed. [para 7]
Appeal allowed
CASE CITED
Commissioner v. Larsen & Toubro Ltd. — 2015 (39) S.T.R. 913 (S.C.) — Referred ..................... [Paras 3, 7]
REPRESENTED BY : Shri Hari Om Arora, Advocate, for the Appellant.
Shri H.S. Brar, Authorised Representative, for the
Respondent.
[Order per : Ashok Jindal, Member (J)]. - The appellant is in appeal
against the impugned order wherein the demand has been confirmed on ‘Con-
struction of Residential Complex Services’ for the period 16-6-2005 to 31-5-2007
and under the ‘Site Formation Services’ for the period from 16-6-2005 to 31-5-
2007 along with interest and penalties.
2. The brief facts of the case are that the appellant is engaged in the ac-
tivity of construction of residential complexes along with material and also en-
gaged in the construction or repairs of roads and was not paying service tax,
therefore, a show cause notice dated 12-5-2008 was issued to them for the period
16-6-2005 to 31-5-2007 and the demand was confirmed under category of ‘Con-
struction of Residential Complexes’ and ‘Site Formation Services’. Against the
said order, the appellant is before us.
3. The Ld. Counsel for the appellant submits that as they are construct-
ing flats along with material, therefore, the merit classification of their services is
under Works Contract Service as held by the Hon’ble Apex Court in the case of
CCE, Kerala v. M/s. Larson & Toubro Limited - 2015 (39) S.T.R. 913 (S.C.).
4. With regard to Site Formation Service, it is his contention that the
said site formation service is none other than the construction of road only in
complexes where any flats have been constructed, the same is merit classification
under construction of roads and same is exempt from payment of service tax as
per the Notification No. 17/2005-S.T., dated 7-6-2005, therefore, they are not lia-
ble to pay service tax.
5. On the other hand, the Ld. AR reiterated the findings of the im-
pugned order.
6. Heard the parties and considered the submissions.
7. The demand of service tax has been confirmed against the demand
under two heads :-
(a) Construction of Residential Complex Services
(b) Site Formation Services
(a) Construction of Residential Complex Services :- We find that it is an
admitted fact in the show cause notice that the appellant is con-
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