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2014 (12) TMI 283 - AT - Service TaxCommercial or industrial construction service - construction of colleges, Government hospitals or open university - Works Contract Service - Notification No. 1/2006-S.T., dated 1-3-2006 - Aabatement of 67% of the gross amount - Held that:- For a construction to be levied to Service Tax, whether under ‘commercial or industrial construction service’ or under ‘works contract service’ the same has to be used for commerce or industry. The construction of colleges, Government hospitals or open university cannot be said to be commercial or industrial in nature. In other words, at the relevant time, the levy did not cover non-commercial or non-industrial construction (other than residential). Therefore, prima facie, there is merit in the contention of the appellant that they are not liable to Service Tax on the amount of ₹ 5,61,69,307/- received by them. If the department has still any doubt, they can call for the copy of the contract and approved plans for the said constructions to satisfy that they are non-commercial or non-industrial in nature, falling outside the purview of service tax levy and the appellant is also directed to submit all the relevant documents in this regard to the department. The work order issued by Maharashtra State Agricultural Marketing Board also indicates the activity undertaken as construction of market yard, cold storage and so on. These are all civil constructions coming under the category of “commercial or industrial construction service” and not “completion and finishing services” as concluded by the department. If completion and finishing services are undertaken as part of the construction service, then the full service rendered has to be seen as a whole to decide the eligibility to the abatement under Notification No. 1/2006-S.T. - None of the issues germane to the transaction has been examined or considered by the adjudicating authority. Therefore, we set aside the impugned order and remand the case back to the adjudicating authority - Decided in favour of assessee.
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