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2016 (2) TMI 486 - CESTAT MUMBAI

2016 (2) TMI 486 - CESTAT MUMBAI - 2016 (42) S.T.R. 716 (Tri. - Mumbai) - Claim of refund of service tax paid by them during the period from April, 2011 to March, 2012 on services of constructions of college building - The said refund claim was rejected by the Adjudicating Authority on the ground that the appellant have not produced (a) approved plan of the building (b) they have not produced proof such as MOU or certificate that the construction of building for the purpose of educational, relig .....

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nt is liable to be refunded. - there is no dispute raised as regard the facts that the respondent by issuing credit note not collected the service tax from the service recipient. - Ld. Commissioner (Appeals) by proper application of mind set aside rejection of refund claim and allowed appeal of the respondent. - Refund cannot be denied - Decided against the revenue. - Appeal No. ST/85372/15 - Dated:- 2-12-2015 - P S Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellants : Ms. P. .....

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Department and providing services under the category of Construction Service' in category of "Commercial or Industrial Buildings and Civil Constructions" and "Constructions of Complex Services" in terms of Section 65(105)(zzq) and Section 65(105)(zzzh) of Chapter V of the Finance Act,1994. They filed refund claim for a sum of ₹ 70,16,333/- in respect of the Service the Service tax paid by them during the period from April, 2011 to March, 2012 on services of constru .....

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and appellant recovered the amount of service tax by way of issuing debit note. Aggrieved by the said Adjudication order, appellant filed appeal before the Commissioner (Appeals) who allowed the appeal after considering that the building is college building for educational purpose and it is approved by All India Council for Technical Education (AICTE) therefore it is other than construction for commercial or industrial construction, hence the same is not taxable. The Ld. Commissioner also referr .....

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t for refunding the amount of service tax to the recipient. Accordingly, service tax paid by the appellant was not collected from the service recipient. 3. Ms. P.V. Sekhar, ld. Dy. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the grounds of appeal and further submits that whether the building is used for commercial and industries or otherwise can be ascertained only from the approved plan of building for civil construction. The respondent have not produced any approved plan .....

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vy of Service tax is entirely governed by the provisions contained in the Finance Act, 1994 and the Rules made thereunder. Therefore, even though the client of the respondent for whom building was constructed is charitable trust merely because of this reason the service tax on construction services does not get exempted. 4. On the other hand, Shri Vinay Jain, Ld. CA appearing on behalf of the respondent submits that service tax is applicable only on the commercial and industrial construction. In .....

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g is not for the purpose of commercial and industrial use. He submits that it has been settled, time and again by this tribunal that construction of building for educational purpose or for charitable trust cannot be treated the construction of the commercial or industrial construction. In this regard he placed reliance on following judgments: (a) B.G. Shirke Construction technology Pvt. Ltd. vs. CCE [2014(33) STR 77 (Tri-Mumbai)] (b) Anand Construction Company vs. CCE [2013-TIOL-238-CESTAT-MUM] .....

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which is carrying out Technical Education and same is approved by AICTE, Technical and Higher Education Department of Government of Maharashtra. The recipient of the service namely Vidya Prasarak Mandal, undisputedly a charitable trust registered with Bombay Public Trust, 1950. Respondent also produced the building plan. With all these facts, it is clear that building constructed by the respondent is not commercial and industrial construction, therefore does not fall under the category of taxab .....

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truction of Educational institute and the ratio of the judgments are applicable in the present case. we also gone through findings of the Ld. Commissioner (Appeals) who has given very elaborate findings which are extracted below: "8. I further observe that the Appellants are provider of construction service and had undertaken works to construct college building. The service recipient have constructed building which was used as college to be named as "VPM's Maharshi Parshuram Colleg .....

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o mention that, Letter of Approval from All India Council for Technical Education' which is statutory body under Ministry of HRD, Government of India read with letter of approval from Technical & Higher Education Department, Government of Maharashtra' conveys the approval of statutory bodies to said service recipient for commencing the engineering courses in college instituted at building constructed by the appellant i.e. VPM's Maharshi Parshuram College of Engineering, Velneshwa .....

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e recipient justifies that college building constructed by the appellant is to be used for the sole purpose of education, and not for any commercial or industrial purposes. Attention is also invited to para 38 of constitution of the said trust which restricts the trust to apply any surplus for any purpose other than object of said service recipient, prevents said service recipient to indulge in any activity other than for the purpose of its educational object. Consequently, building constructed .....

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e. Circular NO. 80/10/2004 dated 19/9/2004 in para 13.2 has also made it clear that such trust will not be subjected to service tax. In this regard attention is drawn to Section 2(13) of Bombay Pubic trust Act, 1950 which reads as: "Public Trust" means an express or constructive trust for either a public, religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious .....

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