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TMI Blog2018 (6) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 they entered into agreement dated 4.4.2007 and 4.8.2007 with Acharya Kundkund Educational Society, Aligarh and Mangalayatan University, Baiswan, Aligarh respectively for construction of multi-stories Girls' Hostel including all development alonwith other development work. The Education Society is incorporated with the social welfare object whereas the University is promoted by the society, which is a charitable Society/Trust. 2. Later on the Appellant filed a refund claim of service tax amounting to Rs. 28,51,165/- on 23.06.2011 on the ground that the construction activities were undertaken by them in relation to construction of multi-stories Girls' Hostel for the university, which was not meant for use or to be used or occupied primaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, which were produced by the appellant simply advice the appellant to revise their bills and these nowhere suggest that that the appellants have refunded them the element of service tax received during the course of rendering the taxable service. The Commissioner (Appeals) also observed that the appellants have not brought on record their sale invoices, bank statement or any other documentary evidence that they have not collected the element of service tax from their service recipient. They have merely brought on record the certificate of chartered accountant which is not sufficient. 4. We have heard the advocate for the Appellant and ld. AR for the respondent and perused the record. The ld. AR supported the finding in the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices provided in respect of roads, airports, transport terminals, bridges, tunnels and dams; From the above definition it is clear that the construction activity carried out or intended to be carry out primarily for 'commerce' or 'industry' are alone taxable. Therefore construction of the building which is 'primarily' or 'mainly' used or to be used for commercial purpose can only come within the ambit of 'Commercial or industrial construction service'. 5. Ld. Advocate for the Appellant drew our attention to the Circular No.80/10/2004-ST dated 17.9.2004 whereby scope of Commercial or Industrial Services has been clarified as under:- "13. Construction Services (Commercial and Industrial Building or Civil Structure) 13.1 Services provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Generally, government buildings or civil constructions are used for residential, office purposes or 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. 6. The ld. Advocate for the Appellant submitted that the university/society, for which the appellant undertook construction activity, are non-commercial entities solely for charitable educational purposes for common people and the balance sheets and audit report of the said university/society of the period in question shows that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) or before this Tribunal. The chartered accountant's certificate alone cannot be relied upon in the absence of any corroborative evidence to rule out the doctrine of unjust enrichment. The ld. Advocate for the Appellant prayed that one more opportunity be given to them to produce all the documentary evidences before the Adjudicating Authority in support of their claim, which was not submitted earlier by them before the Adjudicating Authority. The ld. AR although did not oppose the said request of the Appellant for remand but he submitted that the refund claim of the appellants are also time barred. 8. Having considered the rival contentions, we find it proper and appropriate in the interest of justice, to set aside the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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