Raju ORDER
Ramesh Nair, Member (J)
1. Appellant has filed this present appeal being aggrieved by Order-in-Appeal No. RAJ-EXCUS-000-APP-139-2019 dated 09.07.2019 passed by the Commissioner (Appeals), Rajkot.
2. The brief fact of the case is that based on intelligence that Appellant was not paying Service tax on the Construction activities carried out by him, a detailed inquiry was carried out and statements of Shri Jagdish Pala were recorded. Investigation revealed that the Appellant had constructed residential and commercial complexes and received booking amounts as well as installments amount from his buyer but had not obtained service tax registration and also did not pay Service Tax. After completing the investigation a Show Cause Notice dated 07.09.2009 was issued to the Appellant demanding Service tax under Section 73(1) of the Finance Act, 1994 along with interest under Section 75 of the Act and proposing penalty under Section 76, Section 77 and Section 78 of the Act. The Adjudicating Authority adjudicated the case vide OIO dated 28.03.2018 and dropped the proceedings initiated against the Appellant. Aggrieved by the said order, Department filed appeal before the Commissioner (Appeals), and Learned Commissioner (A) has allowed the department's appeal by way of remand for quantification of demand. Hence, the present appeal.
3. Shri Pankaj Rachchh learned Counsel Appearing on behalf of the Appellant submits that Learned Commissioner (Appeals) has travelled beyond the scope of Show Cause Notice as well as grounds of appeal filed by department. It was not issue before him that whether explanation under clause (zzq) of sub-section(105) of Section 65 of the Finance Act, 1994 with effect from 01.07.2010 is of clarificatory nature and always retrospective nature or otherwise? He has grossly erred in finding the explanation are clarificatory in nature and does not introduce new taxable service but explain in the service already taxable. An explanation is enacted to remove doubt or to clarify a fact already in existence and hence always retrospective in nature. The Department had preferred an appeal on the ground that the adjudicating authority has erred in extending the benefit of exemption to the appellant on the construction of 'Commercial Complex' or 'Construction of residential cum commercial complex' based on Circular No. 108/02/2009-ST : MANU/DSTX/0010/2009 dated 29.01.2009 as it can be seen from the said Circular that it is applicable for 'Construction of Residential Complex' only. That the Adjudicating authority has erred in wrongly interpreting the wording of the D.O.F. No. 334/1/2010-TRU dated 26.02.2010 as it is not the case that the entire consideration for the property has been received after the completion of construction (i.e. after the issue of completion certificate). The Ld. Commissioner (Appeals) has not given a single finding on the grounds of appeals.
4. He submits that it is admitted facts in the show cause notice that the appellant had entered into agreement with his buyers for sale of shops during the construction of commercial complexes and residential cum commercial complexes and Service tax was demanded classifying the service as "Commercial or Industrial Construction" under Section 65(105)(zzq) of the Finance Act, 1994. As per clarification issued by CBEC vide Circular No. B1/6/2005-TRU : MANU/DSTX/0026/2005 dated 27.07.2005 at Para 13.3 that residential complex may also contain other facilities such as market or shopping complex etc. Therefo........