TMI Blog2018 (2) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... ng / construction is used has to be gathered from the plan approved by the concerned authorities. In the instant case, the plan approval shows that the building is approved for the use as training centre - the building is a Government building which is used for creating a facility of training, testing etc. for industrial units, in consonance with the Board circular, the building cannot be said to be a commercial building. The appellant succeeds on merit. It is not necessary to deal with the issue of limitation. Appeal allowed - decided in favor of appellant. - ST/370/2011 - Final Order No. 40359 / 2018 - Dated:- 6-2-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri P. Sara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal. 2. On behalf of the appellant, ld. counsel Shri P. Saravanan submitted that the show cause notice is issued relying upon object stated in clause 10 of the Memorandum of Association. The allegation of department is as per clause 10 of Memorandum of Association, the building constructed is used for trade and commerce. He submitted that the Memorandum of Association has various other objects and clause 10 is only one of the several objects. There is nothing in the Memorandum of Association which shows that building is used for commercial purposes. In fact, the building is used as training centre. The Commissioner (Appeals) has travelled beyond the show cause notice confirming to hold that building is used for commercial purpose and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Board in the circular cited supra. 4. The ld. AR Shri S. Govindarajan reiterated the findings in the impugned order. He submitted that para 10 of the Memorandum of Association states that the object of the SPV / COINDIA is to purchase, take on lease or otherwise acquire any lands, buildings, houses, offices, showrooms, workshops etc. for the purpose of these to be used in trade or business of the Association. This would show that the object of the Association is to engage in trade and business. That therefore building constructed is used for commercial activities and would fall within the definition of Commercial or Industrial Construction Service. 5. Heard both sides. 6. For better appreciation, the definition of Commerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the industrial units in the Pump, Motor and Foundry Cluster of industries in Coimbatore. Since the building is constructed for creating common facilities for the benefit of industrial units, the Commissioner (Appeals) held to be for commercial purpose and the ld. counsel contends that this finding is beyond the scope of the show cause notice. We do not find this argument of the ld. counsel attractive for the reason that the Memorandum of Association is one of the relied upon documents for issuance of the show cause notice. Simply because clause 10 was specifically mentioned in the show cause notice, it does not mean that the show cause notice is based only on para 10 of the Memorandum of Association. Thus, the contention of the ld. coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xable. 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. 9. From the above, it is seen clarified by the Board that the information as to purpose for which the building / construction is used has to be gathered from the plan approved by the concerned authorities. In the instant case, the plan approval shows that the building is approved for the use as training centre. Further, the work order also shows that space has to be earmarked for training centre/infrastructure etc. This together with the fact that the building is a Government building which is used for creating a f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
