1. The brief facts of the case are that the appellant had obtained work orders from Gujarat State Police Housing Corporation Limited (GSPHCL for short) and accordingly during the year 2009-10 to 2011-12 had constructed residential quarters for the staff of the Gujarat Police. The appellant had also carried out construction of residential complex for Rajkot Municipal Corporation (RMC for short) as sub-contractor of M/s. Avadh Construction. The appellant had not paid service tax on the said construction service provided to GSPHCL and RMC, therefore the demand was raised and confirmed under the category of Residential Complex Service.
2. Shri Amal Dave, Ld. Counsel appearing on behalf of the appellant fairly concede that the appellant being sub-contractor is liable to pay service tax as held by the Larger Bench of this Tribunal in the case of CST, New Delhi vs. Melange Developers Pvt. Limited - MANU/CE/0244/2019 : 2019-TIOL-1684-CESTAT-DEL-LB. However, he submits that the entire demand is time-barred as the show cause notice was issued beyond the normal period. He submits that there is no malafide on the part of the appellant. The appellant had not paid service tax as there was confusion that whether the sub-contractor is liable to pay service tax when the entire service tax was paid by the main contractor. On this issue there were conflicting judgments and finally the issue was settled by the Larger Bench in the case of Melange Developers Pvt. Limited (supra). Therefore, in these circumstances, it cannot be said that the appellant suppressed the facts or had malafide intention to evade the service tax. Therefore, the demand for the longer period is time-barred. In support, he relied on the following judgments:-
(a) CCE & ST vs. Saurashtra Cement Limited - MANU/GJ/0288/2016 : 2016(42) STR 632 (Guj.)
(b) Marsha Pharma Pvt. Limited vs. CCE, Vadodara - MANU/CS/0092/2009 : 2009(248) ELT 687 (Tri. -Ahmd.)
(c) CCE, Vapi vs. Kolety Gum Industries - MANU/SC/0656/2016 : 2016 (335) ELT 581 (S.C.)
(d) Copy of CESTAT order No. A/11071/2019 dated 05.07.2019 in case of M/s. Hi Scan Pvt. Limited passed by CESTAT Ahmedabad.
(e) Copy of CESTAT order No. A/11715/2018 dated 30.07.2018 in case of M/s. Dharti Automobiles passed by CESTAT Ahmedabad.
(f) CCE, Delhi vs. Soni & Toni Electrical - 2007(217) ELT 457 (Tri. -Del.)
(g) Principal Commissioner GST & Central Excise, Chennai vs. C. Kamalakanan - 2018 (18) GSTL 589 (Mad.)
(h) Principal Commissioner vs. SKS Ispat and Power Limited - 2018 (14) GSTL J75 (Chhattisgarh)
(i) CST, Delhi vs. Melange Developers Pvt. Limited - 2018-TIOL-1983-CESTAT-DEL
(j) CST, New Delhi vs. Melange Developers Pvt. Limited - MANU/CE/0244/2019 : 2019-TIOL-1684-CESTAT-DEL-LB
(k) BCC Developers and Promoters Pvt. Limited vs. Commissioner of C. Ex., Jaipur - MANU/CE/0431/2017 : 2017 (52) STR 22 (Tri. - Del.)
(l) Power Mech Projects Limited vs. Commissioner of Guntur - MANU/CH/0122/2016 : 2017(48) STR 165 (Tri. - Hyd.)
(m) National Building Construction Corpn. Limited vs. CCE & ST. Patna - 2011 (23) STR 593 (Tri. -Kolka........