TMI Blog2013 (11) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... pting the same logic, the Sports Stadia in the present case is also a non-commercial construction for use by the public. Therefore, we are of the considered view that the Sports Stadium constructed for conducting Commonwealth Games, is a non-commercial construction - Following decision of B.B. Nirman Sahakari Samiti Vs. State of Rajasthan [1979 (11) TMI 256 - RAJASTHAN HIGH COURT] - Decided in favour of assessee. - ST/629/2011 - - - Dated:- 13-6-2013 - P R Chandrasekharan And Anil Choudhary, JJ. For the Appellant : Shri Bharat Raichandani, Adv. For the Respondent : Shri Shobha Ram, Commissioner (AR) PER : P R Chandrasekharan The appeal is directed against the Order-in-Original No. 11/P-III/STC/COMMR/2011-12 dated 15.9.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction Service' as construction of a new building or a civil structure or a part thereof which is used or occupied or engaged, primarily, for commerce and industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. 2.2 The learned adjudicating authority observed that the facility constructed by the appellant for the State Government of Maharashtra is to be used by the public and others for a consideration, therefore, the entire building/structure is commercial construction and accordingly, he confirmed a demand of Rs. 10,21,11,459/- under Section 73 of the Finance Act, 1994 and also imposed an equivalent amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80/10/2004-ST dated 17/09/2004, wherein it has been clarified as under:- 13.2 The leviability of service tax would depend primarily upon whether the building or civil structure is ''used, or to be used'' for commerce or industry. The information about this has to be gathered from the approved plan of the building or civil construction. Such constructions which are for the use of organizations or institutions being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for the purposes of profit are not taxable, being non-commercial in nature. Generally, government buildings or civil constructions are used for residential, office purposes or for providing civic amenities. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand has been confirmed is a letter dated 5.9.2008 written by CBE C to the Director of Sports Youth Services, State Government of Maharashtra. In the said letter it has been stated that Commercial or Industrial construction service' and works contract service' for construction of stadium are leviable to service tax provided that such services are primarily for the purposes of commerce of industry. It was further directed in the said letter in para 5 that in case any further clarification is needed on the issue, the jurisdictional Commissioner may kindly be approached. In view of this letter, the learned Commissioner has confirmed the duty demand. 4. Learned Commissioner (AR) reiterates the findings given in the adjudication orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher rate for institutions and clubs and the highest rate for usage for commercial purpose. This rate is for corporate bodies who want to undertake sports competitions in the stadium. Merely, because a higher rate has been prescribed for the corporate, it does not mean the use is other than organizing sports competitions and conducting of sports activities cannot be held to be a commercial activity. He further contends that it is not the purpose for which the stadium has been put to use that is relevant for classification purpose and it is how, under the local municipal corporations/municipalities and other local authorities, the construction has been treated. As per the certificate issued by the Gram Panchayat of Mahalunge, the construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, including those used for educational, recreational, or cultural purposes. (d) Any park. 6.3 The Sports Stadia is used for public purpose. Merely because some amount is charged for using the facility, it cannot become a commercial or industrial construction. Even in a Children's Park, entry fee may be 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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