TMI Blog2018 (8) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... erial is also provided by the service provider, the case of the appellant as far as completion and finishing services as detailed above are concerned, it stands clearly covered under Item No. 5 of the Table given in Notification No. 1/2006-ST dated 01.03.2006 - the Commissioner (Appeals) has rightly extended the benefit of this notification. The other construction services which are residential in nature, the phraseology itself takes that Contract out of the definition of Commercial and Industrial Construction. Hence, levying the demand for the said construction under the head of it being commercial is, therefore, not at all sustainable. Levy has rightly been done away. Commercial nature of services - Held that:- dmittedly assessee/re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi, DR for the Appellant Shri Madhusudhan, Advocate for the Respondent ORDER Per Rachna Gupta: The appellants herein are registered under Service Tax for providing commercial or industrial construction service with effect from 29.05.2007 and are discharging their liability since October 2007 by claiming abatement under Notification No. 01.2006 dated 01.03.2006. During an audit, it is observed that the appellant, even prior to the said registration were engaged in construction services, but have not discharged the liability for the period with effect from April 2005 to September 2009. A demand, accordingly, has been levied vide a Show Cause Notice dated 08.10.2010. In addition, the benefit of abatement under the said Notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent. 3. Learned appellant/DR has impressed upon that Commissioner (Appeals) has erred in modifying the Order-in-Original in respect of the base period after 01.06.2007 holding that there was no Show Cause Notice under Work Contract Service. On the basis of admitted facts that the assessee himself has taken registration under the category of Commercial or Industrial Construction Services on 29.05.2007 and discharged the Service Tax liability under the same category. It is also impressed upon that erection commissioning and installation, commercial and industrial construction and constriction of residential complex services were notified taxable services even prior to 01.06.2007, the date on which the Works Contract Service got introduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which do not fall under the category for which the impugned Show Cause Notice has been issued. Further, it is submitted that since the services provided to non-government entity is along with the material hence the abatement benefit has rightly been extended in their favour. Rest of the constructions are since on behalf of the Government, the demand thereof has rightly been dropped. While relying upon the case of M/s Kone Elevators India Pvt Ltd vs. CST (2007) 10 STT 133 (Tri.-Chennai), it is submitted that if VAT has been paid on the value of goods involved in the contract of construction, the Service Tax is not payable on that value, i.e., the material used in rendering services cannot be included in assessable value for the purpose of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ideration is as to whether all such activities of the assessee/respondent can be categorized as Commercial or Industrial Construction Services. For the purpose the definition of Commercial or Industrial Construction Services thereof is important. 7. As per Section 65(25B) whose scope was extended with effect from 16.06.2005, the commercial or industrial construction services means: (a) Construction of a new building or civil Structure or a part thereof or (b) Construction of pipeline or conduit: (c) Completion and finishing services such as plastering painting, floor and wall tiling was covering and well papering and metal joinery and carpentry fencing and tailing, construction of swimming pools, acoustic applications or fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it being commercial is, therefore, not at all sustainable. Levy has rightly been done away. 10. We, therefore, find no infirmity in the order under challenge. 11. Now, coming to the plea that all services of the appellant are not commercial in nature, we observe that admittedly assessee/respondent is constructing Ambedkar Peeth, a programme under Government of Rajasthan for M/s AVS and is also rendering services to a PSU, i.e., Jaipur Vidyut Vitran Nigam Limited (JVVNL) both being the authorities under Government of Rajasthan in services rendered to them will clearly be out of the ambit of the above definition of Commercial and Industrial Construction. Resultantly, any demand raised for these constructions under Commercial or Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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