TMI Blog2023 (5) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... ruction, renovation, repair work undertaken by them fall under the exclusion of the definition of Commercial or Industrial Construction Service hence, we hold that the appellants are not liable to pay any service tax on such activity - it is found that they have also done some work for commercial organizations in some of the Financial years however, the value of such work is within the threshold limit of the exemption and therefore, the same also does not fall under the category of the service tax levy and therefore, it is held that no service tax is leviable. The impugned Order-In-Appeals are without any merit - appeal allowed. - Service Tax Appeal No.13939 of 2013 with Service Tax Appeal No. 10115 of 2016, 10851 of 2016, 11922 of 2017 - Final Order No. A/11114-11117/2023 - Dated:- 3-5-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C L MAHAR, MEMBER (TECHNICAL) Shri A.X.S. Jiwan, Consultant for the Appellant Shri Tara Prakash, Deputy Commissioner (AR) for the Respondent ORDER The above mentioned four appeals are being taken up together for decision as the issue involved in all the four appeals is same. The details with regard to above mentioned four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, it has been submitted that the appellant had carried out the Civil work of the repair, renovation of Government Buildings which were non-commercial and non-industrial buildings and the department has not adduced any evidence to prove that the building of which construction activity has been undertaken by the appellant were used for Commercial or Industrial purpose. 2.1 It has also been an argument of the learned advocate that the taxable value in all the above appeals have been taken on the basis of the balance sheet and on the basis of form 26 AS of Income Tax without any independent investigations and without verifying the appellant s record and the department has not even bothered to prove that the taxable service has been performed against the amount of the income shown in the books of account of the appellant. The learned Advocate has also referred to Section 65(25b) definition of service which provides as follows:- (a) .. (b) . (c) (d) Repair, alternation renovation or restoration of or similar services in relation of building or civil structure, pipeline of conduit, which is- (i) Used or to be used, primarily for, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repair, renovation, construction work undertaken by the appellant is primarily for Vadodara Municipal Seva Sadan, M.S. University and for police department. We feel that these organisations are in no way concerned with any Commercial of Industrial activity and therefore, the activity undertaken by the appellant will fall under the exclusion clause of the definition for the Commercial or Industrial Construction Service. It has also been noticed that the matter is no longer res-integra as the matter has already been decided in catena of decisions, some of them are as follows:- KHURANA ENGINEERING LTD. VIDE FINAL ORDER NO. A/1882/WZB/AHD/2010 DATED 26.11.2010 ANAND CONSTRUCTION CO.- VIDE ORDER NO.S/1288/2012/CSTB/C-I DATED 26.09.2012 RAJ ENGINEERING WORKS VIDE ORDER NO. A/228/13/SMB/C-IV DATED 10.05.2013 SHRI D.H.PATEL SHRI R.N. DOBARIYA VIDE ORDER NO. M/13462-13463/WZB/AHD/2013 DATED 26.07.2013 B. G. SHIRKE CONSTRUCTION VIDE ORDER NO.A/1375/13/CSTB/C-1 DATED 13.06.2013 This tribunal in the case Shri D.H.Patel Shri R.N. Dobariya VERSUS CCE ST, SURAT decided on 26.07.2013 has held as follows:- 7. On perusal of the records, we find that the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licable to the facts of this case which clarified as under :- 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, sanitation or philanthropic purposes and not for the purposes of profit are not taxable being, non-commercial in nature. 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 . From the above circular, we find that appellant are not liable to pay Service Tax. Accordingly, we set aside the impugned order and allow the appeal with consequential relief if any. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tractor constructed the residential complex and handed over to NBCC who in turn handed over the same to Govt. of India, service tax would be leviable. He drew our attention to the observation of learned Commissioner in his order wherein he has also held that this is not a case where residence is for personal use of a person and is not covered by the explanation given under clause (30a). We have considered this submission. We find ourselves in agreement that the contention of the learned advocate that service has been provided by the appellant to Govt. of India in this case and CPWD and Income Tax department cannot be treated as separate entities just because service has been provided to CPWD who in turn handed over the same to Income Tax department. Further, learned advocate also drew our attention to the notice issued by the CPWD inviting tenders. The tender starts with words Tenders are invited on behalf of the President of India . Further, we also find that the guarantee executed by the contractor and agreement entered by the contractor have been accepted by CPWD for and on behalf of the President of India. Learned DR also fairly admitted that he has not got any clarification f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation - For the removal of doubts, it is hereby declared that for the purposes of this clause (a) personal use includes permitting the complex for use as residence by another person on rent or without consideration; (b) residential unit means a single house or a single apartment intended for use as a place of residence. ] We have already explained the submission of learned advocate in brief and as explained by him in this case, residential complex constructed by the appellant is meant for use by the Income Tax department to provide the same on rent to the employees and therefore, it is clearly covered by the explanation given for Personal use in the definition. In this case the CPWD has engaged the appellant for construction of residential complex for giving it on rent to the employees of Income Tax department and therefore this service cannot be included in the definition of residential complex services. It is basically the case of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his would also go in favour of the appellants. 5. Further, in view of the fact that on merits, we have held that service provided by the appellant is to be treated as service provided to Govt. of India directly and end use of the residential complex by Govt. of India is covered by the definition Personal Use in the explanation to definition of residential complex service, the other aspects need not be considered. In view of the discussion above, the impugned order cannot be sustained and accordingly the same is set-aside. Appeal is allowed with consequential relief to the appellant. 05. In view of the above, since the facts of the matter are similar to the decisions mentioned above, we are of the view that the service provided by the appellant are to establishments and organizations which are of non commercial or non industrial nature and therefore, the construction, renovation, repair work undertaken by them fall under the exclusion of the definition of Commercial or Industrial Construction Service hence, we hold that the appellants are not liable to pay any service tax on such activity. However, we find that they have also done some work for commercial organizat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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