TMI Blog2013 (2) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose. Merely because some amount is charged for using the facility, it cannot become a commercial or industrial construction. Even in a Children Pak, entry fee is levied for maintenance of the Park. Merely because some amount is charged for using the Park, it cannot be said that it is a commercial or industrial construction. Adopting the same logic, the Sports Stadia in the present case is also a non-commercial construction for use by the public. Therefore, the Sports Stadium constructed for conducting Commonwealth Games, is a non-commercial construction. The appellant has made out a strong case for complete waiver of pre-deposit of dues adjudged. Thus unconditional waiver of the pre-deposit of dues adjudged and stay recovery thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hall of size 60m x 40m (b) Fitness Centre (c) Shooting Range complex (d) Sports Science Centre (e) Press and Media Centre. The tender also involved up-gradation of existing facility, such as:- (a) Athletic Stadium additional tract, warm up track (b) Tennis Centre Court and resurfacing of practice courts (c) Weightlifting Hall (d) Hostels (e) Wrestling Hall (f) Boxing Hall (g) Swimming Pool etc. 2.1 The question involved is whether this construction undertaken by the appellant amounts to Commercial or Industrial Construction' as defined under Section 65(25b) of the Finance Act, 1994. The said section defines the terms Comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel further submits that the Director, Directorate of Sports Youth Services, Pune vide Affidavit dated 9.9.2008 has deposed that the project of building/upgrading of Shiv chhatarpati Stadium at village Mahalunge was undertaken for holding 3 rd Commonwealth Youth Games 2008 in the month of October, 2008 and the project was financed and funded by the Government and the Stadium is fully controlled by the Department of Youth Affairs and Sports, Govt. of Maharashtra and the said stadium has been built as a non-commercial and non-industrial project. He further declared that stadium will be continued to be used for non-commercial purpose even after the finish of the Commonwealth Youth Games. 3.2 The learned Counsel also relies on the Circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless conversion falls within the meaning of commercial or industrial construction service." 3.3 From this circular, it is clear that if in the records maintained by the local authorities, it is not to be used for commercial purposes, then Service Tax liability is not attracted. Further, even if construction built for non-commercial purposes and primarily not used for commercial or industrial purposes renting out the same later for commercial purpose would not make the construction as commercial or industrial construction. In the light of this, he submitted that the activity undertaken by the appellant does not come within the purview of the Commercial or Industrial Construction Services as defined under Section 65(25b) of the Finance A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court held that public utility' means any work, project which is going to be useful to the members of the public at large. The public benefit aided at or intended to be secured need not be to the whole community but to a considerable number of people. In American Law, the word Public facility' has been defined as under:- Public facility' means the following facilities owned by a State or local government, such as:- (a) Any flood control, navigation, irrigation, reclamation, public power, sewage treatment and collection, water supply and distribution, watershed development, or airport facility (b) Any other Federal and street road or highway (c) Any other public building, structure, or system, inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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