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2014 (7) TMI 288 - CESTAT NEW DELHICommercial or industrial construction service - construction of Bharat Ghar - Assessee claimed that the services were provided to a non-profit making entity and therefore there was no liability to tax - Revenue contends that Bharat Ghar used to provide space for civil amenities and since the appellant had produced no proof of the construction being used only for charitable purposes and without monetary consideration, the service provided fell outside the exclusionary clause of Section 65(25b) of the Act - Held that:- appellant has filed a copy of a communication dated 6.6.2013 of the service recipient M/s Greater Noida Authority which is to the effect that Bharat Ghar is intended to be used by the villagers; no service charges are levied; and the construction is for facility of the public of the area - Neither the primary Authority nor the appellate Authority were sensitized to this material. If there is sufficient evidence in support of the appellant's claim that Bharat Ghar was not used for commerce or for industrial purposes, the service provided by the appellant would be outside the ambit of the taxable service alleged. The material now produced requires to be considered by the primary fact finding Authority. It is the appellant's conduct of presenting a vague and breezy not unresponsive of constructing defence that has led to expenditure of scarce and valuable adjudicative resources by the State, resulting in the primary and the appellate Orders. We are of the view that letter issued by the Greater Noida Authority requires to be considered and appreciated, to adjudicate upon the claim of the appellant as to non-liability to service tax. - Matter remanded back - Decided conditionally in favour of assessee.
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