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2022 (11) TMI 1043 - AT - Service TaxExemption from Service tax - works contract service - Commercial or Industrial Construction Service - Construction of Complex Service - site formation and clearance, excavation, earth moving & demolition services - construction work carried out for M/s Gujarat Energy Transmission Corporation Ltd. - construction work of laying of drainage/sewerage pipelines and related work carried out for Ahmedabad Urban Development Authority (AUDA) and Ahmedabad Municipal Corporation (AMC) under the works contract service - construction of commercial complex consisting shops at Jasdan Bus Terminus carried out for Gujarat State Road Transport Corporation Ltd. (GSRTC) - construction of residential complexes carried out for Gujarat State Police Housing Corporation Ltd. - construction work carried out for Navsari Agricultural University - work carried out for M/s Sabarmati River Front Development Corporation Ltd. - principles of natural justice. HELD THAT:- As regard the service provided to Gujarat Energy Transmission Corporation Ltd. it is found that such services are exempted from payment of service tax in terms of Notification No. 45/2010 –ST dated 20.07.2010. The decisions relied upon by the Appellant in this context also support the claim of appellant, however we do not find any finding on this aspect in impugned order. Similarly from the definition of “commercial or industrial construction service” defined in Section 65(25b) it is found that the said definition exclude the services provided in respect of road and transport terminals. The definition of residential complex as defined in Section 65(91a) of Finance Act 1994 also does not include a complex which is intended for personal use as residence, the explanation clause of said definition also defined personal use includes permitting the complex for use as residence by another person on rent or without consideration. The Notification No. 17/2005 –S.T. dated 07.06.2005 exempts Site Formation and clearance, excavation and demolition and such other similar activities carried out in the course of construction of roads, Airports, Railways, terminal, bridges, tunnels, dams, ports or other ports etc. from the levy of service tax. In respect of other services also appellant claim the service tax exemption. In support of their arguments appellant also produced work orders issued by Ahmedabad Municipal Corporation, Gujarat State Police Housing Corporation Ltd., Navsari Agricultural University, Gujarat State Road Transport Corporation and Sabarmati River Front Development Corporation Ltd. - in the impugned matter the as regard the exemptions appellant also not produced their claim properly before the adjudicating authority with supporting documents. It is seen that the Ld. Commissioner has also not examined the claim of appellant properly, therefore, we find it appropriate to remand the matter to the Commissioner to examine this issue afresh, after taking into consideration the documents/ details /contracts /agreements and judgments relied upon by the appellant in support of service tax exemption. The lower adjudicating authority has not considered all the issues in the light of the legal authorities and judicial pronouncements while deciding the issue - case remanded back to the adjudicating authority for consideration of all the issues and thereafter to pass an order afresh after giving reasonable opportunity to the appellant of being heard - appeal allowed by way of remand.
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