TMI Blog2019 (3) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... id circular service tax was not leviable on the said activity performed by the appellant. Since the service tax was not leviable and appellant is succeeding on merit the issue of limitation need not be discussed and decided. Appeal allowed - decided in favor of appellant. - APPEAL No.ST/55289/2014-CU[DB] - FINAL ORDER NO-70484/2019 - Dated:- 6-3-2019 - Smt. Archana Wadhwa, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Ms Rinki Arora, Advocate for Appellant Shri Shiv Pratap Singh, Deputy Commissioner (AR), for Respondent ORDER Per: Anil G. Shakkarwar Present appeal is directed against Order-in-Original No. 03/Commissioner/ST/GZB/2014-15 dated 30/06/2014 passed by Commissioner of Customs, Central Excise Service Tax, Ghaziabad. 2. Brief facts of the case are that appellant were providing services namely Commercial or Industrial Construction Service and Construction of Residential Complex Service and were registered for payment of service tax and were regularly filing ST-3 returns. During the course of audit of the records of the appellant for the years 2008-09 and 2009-10 it was found by revenue that appellant had constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall not be treated as taxable service. They further contended that the legislative intent is thus absolutely clear in framing this definition and any building or structure constructed for non commercial purpose was not chargeable to service tax and this non commercial activity was an inclusive term which included myriads of non commercial functions, including but not limited to government functions, public utilities, charitable activities and other non commercial activities like public health, safety, sanitation, transport rails, etc. The party also referred to the Central Board of Excise Customs issued a clarification bearing Circular No.80/10/2004-ST., dated 17.09.2004 (indicated as 80/80/2004 in their reply para 13.2 whereof provided as under:- 13.2 The leviability of service tax would depend primarily upon whether the building or civil structure is ''used, or to be used'' for commerce or industry. The information about this has to be gathered from the approved plan of the building or civil construction. Such constructions which are for the use of organizations or institutions being established solely for educational, religious, charitable, health, sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd and imposed equal penalty through the impugned Order-in-Original. Aggrieved by the said order, appellant is before this Tribunal. 3. Heard Learned Advocate Ms Rinki Arora on behalf of the appellant. She has made following submissions:- a) The work in Kanshi Ram Hospital was awarded by Greater Noida Authority and the hospital was constructed for general public utility and charitable purposes through a society formed by the Greater Noida Authority namely Greater Noida Chikitsa Samiti registered with the registrar of societies UP. The MOA of the said society clearly shows that the purpose is fully charitable and not commercial. So the construction of the hospital awarded by Greater Noida Authority being of the charitable purposes fall outside the ambit of service tax in terms of Circular No.80/10/2004-S.T. dt.17.09.2004. b) In support of the above contention the appellants rely on following case laws: (i) Modern Engineering Constructions Vs CCE 2018-TIOL-3895-CESTAT-MAD. (ii) Banna Ram Choudhary Vs CCE 2017-TIOL-2405-CESTAT-Del. (iii) Jatan Construction Pvt Ltd. Vs CCE F.O. No. 58135/2017 dt.22/11/2017 In view of above judgments it is clear that the hospital co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by limitation. In addition she relied upon all the grounds raised before the original adjudicating authority. 4. Heard the learned A.R. Shri Shiv Pratap Singh, Deputy Commissioner on behalf of revenue. Learned representative of revenue has reiterated the findings of the Original Adjudicating Authority and emphasis that the appellant could not produce any evidence to establish that the said hospital was not used for commercial purposes and therefore, the impugned order is sustainable. 5. Having considered the submissions from both the sides and on perusal of record and the said circular issued by CBEC, we note that Departmental officers are bound by the Circular issued by Central Board of Excise and Customs. We note that CBEC had issued Circular No.80/10/2004-ST dated 17.09.2004 and in para-13.2 clarified that the leviability of service tax was primarily dependent upon the use of the building or civil structure. Further, it clarified that it was to be asurtained where building or civil structure was used or to be used for commercial or industrial purpose and further required or gather the information as to whether the buildings or civil structures was being used or to be ..... 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