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TMI Blog2023 (5) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 dated 08.05.2017 2014-15 Rs.33,31,304/- With regard to the above mentioned four appeals, it has been the contention of the department that the appellant are engaged in providing taxable service under the category of 'Commercial or Industrial Construction Service' as defined under Section 65 (105)(zzq) of Finance Act, 1994. The assessee is registered with the Service Tax department under Service Tax Code No. ABZPT0719PSD002. It is the contention of the department that the appellants have been providing Commercial or Industrial Construction Service however, they have not paid service tax. The SCNs have been adjudicated by the above mentioned Orders-in-Original and the Commissioner (Appeals) in the above mentioned orders have confirmed the charges as confirmed in the Order-in-Original. 02. The learned advocate appearing on behalf of the appellant have vehemently argued that the service which have been performed by the appellant are primarily renovation, completion or finishing of civil structures which are pre-dominantly meant for use of Vadodara Mahanagar Seva Sadan as well as for Maharaja Sayajirao University and Gujarat State Police Housing Corporation Ltd. constructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation or establishment. The learned advocate has relied upon board Circular No. 80/10/2004-ST dated 17.09.2004. The abstract of which is given below:- 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, 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. 03. We have also heard the learned Department representative who reiterated the finding given in the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we have found prima facie case for the appellant inasmuch as it is not in dispute that the houses constructed by the Tamil Nadu Police Housing Corporation Ltd., are owned by the State Government and were allotted to police personnel by the Government. The Police Housing Corporation appears to have worked as an extended arm of the Government. Some of the decisions cited by the learned counsel are apparently supportive of his point that the houses that were constructed should be constructed to be in the personal use of the State Government. In this view of the matter, we grant waiver and stay against the impugned demand and connected penalties. It can be seen that the issue involved in the case in S Kadirvel Vs. CCE, Tiruchirapalli as was before the South Zonal Bench, Chennai is the same, hence, respectively following view already taken by the bench, we hold that the appellant has made out a case for the complete waiver of the pre-deposit of the amounts involved. Application for the waiver of pre-deposit of the amounts involved is allowed and recovery thereof stayed till the disposal of appeals. Similarly, in the case of Anand Construction Co. the tribunal held as follows: 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanning of the layout and the construction of such complex. In this case, the Govt. of India provides 80 flats to Income Tax department on rent and therefore, it is excluded from the definition of construction services. He also relies upon the reply given by the Central Board of Customs and Excise to National Building Construction Corporation Limited (NBCC), vide Letter No. F. No. 332/16/2010-TRU., dated 24-5-2010, in support of this contention. On the other hand, learned DR submits that it is not correct to say that service has been provided to Govt. of India directly. He submits that the land is owned by Income Tax department and Income Tax department has requested the CPWD to construct the quarters for them and funds have been made available to CPWD by Ministry of Finance for this purpose. CPWD in reality has acted as a bridge between Income tax department and the contractor and after the residential complex is constructed, the same was handed over by CPWD to Income tax department and therefore, in terms of the clarification issued by the Board also, the appellant would be liable to pay service tax. He drew our attention to the letter relied upon by the learned advocate and subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntractors are entered into, agreements are entered into and bonds are accepted, Govt. of India is treated as "Person". Therefore, we are unable to agree with the learned Commissioner when he says that the exclusion clause in the definition cannot be applied to the Govt. of India. For ready reference, definition of Construction of Complex Services is reproduced :- (a) Construction of a new residential complex or a part thereof; or (b) Completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall preparing, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services; or (c) Repair, alteration, renovation or restoration of, or similar services in relation to, residential complex] The definition of residential complex service has been given under clause (91a) of Section 65 as under; "Residential complex" means any complex comprising of- (i) a building or buildings, having more than twelve residential units; (ii) a common area; and (iii) any one or more of facilities or services suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e circumstances, the appellants had no reason to resort to suppression or mis-declaration of the facts to avoid payment of service tax since if the service tax was liable, as per the contract, CPWD was liable to pay service tax. Under these circumstances, invocation of extended time limit cannot be justified in this case. Therefore, penalties imposed under various sections of Finance Act, 1994 also cannot be upheld. 4. Another alternative submission made by the learned advocate was that the contract between the appellant and the CPWD was a works contract and VAT has been paid treating the same as works contract and therefore, no service tax was liable to be paid for the period prior to 1-6-2007. He has cited several decisions in support of this contention. However, we find that the decision of the Tribunal in the case of Cemex Engineers v. Commissioner of Service Tax Cochin - 2010 (17) S.T.R. 534 (Tri. - Bang.) is relevant. In this case, the Tribunal had considered the definition of residential complex services and works contract services and had come to the conclusion that in view of the fact that construction of new residential complex was included in the definition of works co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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