TMI Blog2017 (7) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... fore set aside and matter remanded to the original adjudicating authority to examine the detail account submitted by the appellant - matter on remand. Whether appellant are liable to service tax in respect of services provided to Shri Sathya Sai Health and Education Trust, Government of Maharashtra in respect of Balewadi Stadium for Commonwealth Youth Games and Delhi Development Authority? - Held that: - Tribunal in the case of Anand Construction Co. [2013 (3) TMI 250 - CESTAT MUMBAI] relying on the Circular No. 80/10/2004-ST dt. 17.9.2004 held that no tax can be demanded under the head of commercial or industrial construction in respect of services provided for construction of sports complex for Government of India and for charitable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers providing only completion and finishing services. The Ld. Counsel pointed out that if the benefit of the said notification is denied to them they would be entitled to claim Cenvat Credit of the material used during provision of the service. He pointed out that the Commissioner has arbitrarily denied them this benefit of cenvat credit on the ground that the appellant are also engaged in trading activities and also on the ground that the cenvat credit was not claimed in their ST.3 returns and seperate accounts have not been maintained. He argued that if cenvat credit amount admissible to them is adjusted against the demand then only very small of demand would survive. He pointed out that the appellants have maintained stock register and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Mumbai) and Commissioner of Service Tax-VII Vs. S.M. Sai Construction - 2016 (42) S.T.R. 716 (Tri.Mumbai). 2.3. Ld. Counsel further pointed out that extended period of limitation cannot be invoked in view of their bona fide belief that the services provided to Government of Maharashtra, Delhi Development Authority and Shri Sathya Sai Health Education Trust are not taxable, in view of letter dt. 9.3.2009 issued by Directorate of Sports and Youth Services, Maharastra State's and the letter of Shri Sathya Sai Health and Education Trust dt. 5.10.2007 stating that there will be no service tax liability in view of the Circular No.80/10/2004-ST dt. 17.9.2004. 3. The Ld. A.R. relied on the impugned order. 4. We have gone through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l account submitted by the appellant and to come at the conclusion regarding the cenvat credit available to the appellant. The fact that the appellants are trading should not be held against the appellant as that cannot be the reason for denying cenvat credit otherwise due. 4.2. In so far as the second issue is concerned regarding demand of service tax for the services provided to Government of Maharashtra, Delhi Development Authority and Shri Sathya Sai Health Education Trust. It is seen that CBEC has clarified as follows: Construction services (commercial and industrial buildings or civil structures): 13.1 Services provided by a commercial concern in relation to construction, repairs, alteration or restoration of such buildin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for providing civic amenities. Thus, normally government constructions would not be taxable. However, if such constructions are for commercial purposes like local government bodies getting shops constructed for letting them out, such activity would be commercial and builders would be subjected to service tax. Tribunal in the case of Anand Construction Co. (supra), S.M. Sai Construction(supra) and in the case of B.G. Shirke Construction Technology Pvt. Ltd. (supra) has relying on the said circular held that no tax can be demanded under the head of commercial or industrial construction in respect of services provided for construction of sports complex for Government of India and for charitable institution. In the case of B.G. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, 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-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 constructi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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