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2023 (10) TMI 431 - AT - Service TaxClassification of services - works contract services or not - activity of construction of Mega Sports Complex for hosting 34th National Games by Government of Jharkhand - period June 2007 to May 2008 - HELD 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 and not meant for commercial purposes - the contention of the Appellant agreed with that the facilities like Restaurants, VIP Guest house, Hotel facility etc. is only for the purpose of making the sports complex habitable and functional 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.
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