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2024 (1) TMI 334 - CESTAT NEW DELHILevy of of service tax - Composite works contracts involving rendering the service - transfer or a deemed transfer of property in the material used in executing the works contracts - period 2005-06 to 2010-11 - HELD THAT:- The entire demand confirmed was under the heads ‘Commercial or Industrial Construction Service’, Construction of complex service or Management, maintenance and repair service. The charge under these headings applies only to services simplicitor and not to composite works contract services as per M/S LARSEN & TOUBRO LTD. & ANOTHER, ECC CONSTRUCTION GROUP VERSUS COMMISSIONER OF CENTRAL EXCISE, HYDERABAD [2015 (10) TMI 612 - SUPREME COURT]. Therefore, the entire demand in the impugned order in this Appeal and interest and consequently all penalties need to be set aside. Levy of service tax - Management, Maintenance and repair service - Commercial or industrial Construction Service/Works contract service - period 2011-12 - HELD THAT:- For the period from 1.6.2007 up to 2012, works contracts could be taxed only if they fell under clause 65 (105)(zzzza) and only under this clause. The scope of this clause was limited and it did not include all composite works contracts involving supply or deemed supply of goods and rendering services but only some such services. Insofar as the construction of a building or structure is concerned, this clause applies to findings for commercial purposes - Even if the reasoning of the Commissioner, that it can also be used for commercial purposes is accepted, the essential nature of the building is not commercial. Therefore, it does not fall under section 65(105)(zzzza). The charging section of a tax statute must be strictly constructed and in case of any doubt, the benefit of doubt must go in favour of the assessee and against the Revenue. MDU is a university created by an Act of state legislature and is meant to provide education. Hence, we find that the service of construction of the auditorium in MDU is exempted during after 2012 also - the demand of service tax on this contract deserves to be set aside. Abatement towards cost of material - the demand of service tax on this contract deserves to be set aside - HELD THAT:- It is undisputed that the work was done in connection with the Central Government quarters which were outsourced by the Ministry of Housing and Urban Affairs to National Building Construction Corporation (NBCC) who, in turn, sub-contracted them to the appellant. Since the civil structure and other works in this case were clearly not meant for commerce or industry but to provide accommodation to the Central Government employees and were rendered to the Ministry of Housing and Urban Affairs, they would be clearly exempted by S.No. 12A (a) of the notification at the hands of the NBCC. The appellant, as a sub-contractor of NBCC will also be exempt by virtue of S.No. 29(h) of the notification. The demand under this contract cannot be sustained and hence needs to be set aside. Construction of Flatted Factories at Sonepat for HSIIDC - Period 2012 –13 to 2013–14 - HELD THAT:- Since the dispute is only regarding the certificate that HSIIDC had paid the service tax, this a fit case to be remanded to the Commissioner to examine the certificates produced by the appellant. SCN to EIL (Renovation of Ayakar Bhawan Vaishali, Ghaziabad) - this contract was given by the Income Tax Department to Engineers India Ltd. who, in turn, sub contracted the work to the appellant - HELD THAT:- N/N. 25/2012-ST (S.No. 12A) exempts services rendered to a governmental authority on civil structures other than those meant for commerce, industry or any other business or profession. The building in this case is Income Tax building and it squarely falls under this definition. Therefore, EIL, as a contractor, will get exemption under S. No. 12A. Further, as per S.No. 29 (h) of the same notification, the appellant as a sub-contractor of EIL will get exempted. Therefore, no demand of service tax can be sustained on the services rendered in this contract. Construction of an auditorium in the Kalpana Chawla Government Medical College, Karnal on a contract received from HSCC India Ltd. - case of the appellant is that this construction is covered by notification no. 30/2012 issued under section 68 of the Finance Act according to which only 50% of the Service tax has to be paid by the service provider and the remaining 50% has to be provided by the service recipient - HELD THAT:- In the present case, by virtue of the service being rendered by the Appellant, they were liable to pay service tax in terms of provisions of Section 68. However, he did not record any findings on the question if the appellant’s case was covered by notification no. 30/2012-ST and hence only 50% service tax has to be paid or if it is not covered, why - thus this matter also must be remanded to the Commissioner to examine and decide. Thus, the demands on the contracts for services rendered as sub-contractor to NBCC at Kidwai Nagar and in NOIDA SEZ are liable to be dropped. The demand regarding the contract with HSCC India must be remanded to the Commissioner to examine and record a finding on the claim of the appellant that it was covered by notification no. 30/2012-ST and hence was liable to pay only 50% of the service tax which it had already paid. Appeal disposed off.
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