TMI Blog2023 (10) TMI 431X X X X Extracts X X X X X X X X Extracts X X X X ..... al and in accordance with international standards. The same in no way make the Sports complex is meant for commercial purposes - thus, the activity of the Appellant are covered under Clause (b) of the definition of 'Works Contract Service'. The same view has been held by the Principal Bench of CESTAT, New Delhi, in the case of Jatan Construction Pvt Ltd vs. CCE, Jaipur [ 2018 (1) TMI 374 - CESTAT NEW DELHI] , wherein identical case has been decided in favour of the assessee by relying on the Larger Bench decision in M/S. LANCO INFRATECH LTD. AND OTHERS VERSUS VERSUS CC, CE ST, HYDERABAD [ 2015 (5) TMI 37 - CESTAT BANGALORE (LB) ]. Thus, the activity undertaken by the Appellant is 'Works Contract Service' as defined under Clause (b) of Section 65(105)(zzzza) and hence the activities undertaken are not liable to service tax as the mega sports complex is not primarily meant for commercial purposes. In view of the above, the demands confirmed in the impugned order are set aside. As the demand itself is not sustainable, the question of charging interest and imposing penalty does not arise. The impugned order set aside - appeal allowed. - HON BLE MR. R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineering was awarded to another Consulting Engineer. The scope of work of the Appellant as per the agreement only covers the activity of construction of buildings and surrounded area based on the design and engineering approved. In a way, they were in engaged in the activity of EPC contracts but only undertook construction contracts. Thus, they contended that their activity is not classifiable under clause (ii) (e) of the Explanation to Section 65(105)(zzzza) of the Act. Their activity is of construction of building and allied services which is primarily classifiable under clause (ii) (b) of section 65(105)(zzzza) which covers Construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purpose of commerce or industry . However since the Sports Complex is not primarily meant for commerce and business, the same is not liable to service tax. The fact of non-usage of Sports Complex for commercial purpose was also certified by the Executive Engineer, Special Works Division. The Mega Sports Complex also contains restaurants, VIP Guest house, Hotel facility etc. is only for the purpose of making the sports complex habitable and fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or (b) Construction of a new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or (c) Construction of a new residential complex or a part thereof; or (d) Completion and finishing services, repair, alteration, renovation or restoration of, or similar services, in relation to (b) and (c); or (e) turnkey projects including engineering, procurement and construction or commissioning (EPC) projects; 9. We observe that the adjudicating authority has held that the activity undertaken by the Appellant are covered under Clause (e) mentioned above as EPC project, whereas the Appellant claimed that their activity would fall under Clause(b) mentioned above as it is construction of a civil structure not primarily meant for commerce or industry. A perusal of the activity undertaken by the Appellant indicate that the sports complex is a civil structure, primarily meant for conducting sports activities a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtracted hereinbefore. Clauses (a) to (d) of the definition provides for various types of construction and allied works including glazing, plastering, painting etc. and also repair, alteration, renovation etc on which service tax can be levied. This construction of the allied works ipso facto does not attract the levy of the service tax as further part of the definition would indicate. The said construction, in order to attract service tax, will also have to satisfy the conditions laid down by subsequent part of the definition i.e. (i) used, or to be used, primarily for; or (ii) occupied, or to be occupied, primarily with; or (iii) engaged, or to be engaged, primarily in, commerce or industry, or work intended for commerce or industry . (emphasis supplied by us) 16. The language employed in the definition clause is clear and unambiguous. The plain meaning as can be understood from the definition clause, more particularly, the clarification contained in clauses (i), (ii), (iii) is that the construction ipso facto is not leviable to service tax, but it is only when it is used, or to be used, primarily for commerce or industry or work intended ..... X X X X Extracts X X X X X X X X Extracts X X X X
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