9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2011 (1) TMI 188 - AT - Service TaxCommercial or industrial construction service - Nature of contract - commercial purpose - Held that - Any service receiver irrespective of its status or definition or composition, if utilizing the pipeline for commerce or industry, will render the provider liable to Service Tax. Therefore, strictly speaking, by Revenue s own submissions, the status of GWSSB is not relevant. Nevertheless, this issue as to whether the GWSSB can be considered as a commercial organization, was discussed in detail in Nagarjuna Construction Co. Ltd. s case 2010 (5) TMI 232 - CESTAT, BANGALORE and we agree with the views taken in that case. GWSSB can not be considered as a commercial organization or the purpose of pipeline laid for them by various contractors as one for commerce i.e., to say to buy and sell water. Commercial purpose - the purpose of buying water and bringing it from Narmada Dam was not for selling it, but for supplying it to needy people. In this case, buying and selling is incidental. The purpose is supply of water to the needy citizens of the State. The term used for commerce would mean that only purpose would be buying and selling, which is definitely not the case here. The term used primarily for commerce would mean that primary purpose should be buying and selling and the other purposes also may be served incidentally. In this case, purchase and sale of water are incidental and the main purpose is supply of water to needy citizens of the State. - Decided in favour of assessee.
Issues Involved:
1. Classification of the service provided by the appellant. 2. Invocation of the extended period for demand. 3. Imposition of penalties under sections 76 and 78 of the Finance Act, 1994. 4. Whether the pipeline laid for GWSSB can be considered as used for commerce or industry. Issue-wise Detailed Analysis: 1. Classification of the Service Provided by the Appellant: The core issue was whether the work executed by the appellant under the contract with M/s. Gujarat Water Supply & Sewerage Board (GWSSB) should be classified as 'commercial or industrial construction service' and thus be liable to Service Tax from 16-6-2005. The appellant argued that their activity did not fall under this classification as the pipeline was not laid for commerce or industry. The Tribunal referred to the definition under section 65(25b) of the Finance Act, 1994, and previous judgments, notably the Nagarjuna Construction Co. Ltd. case, which held that laying pipelines for water supply by GWSSB was not taxable since it was not for commercial or industrial purposes. 2. Invocation of the Extended Period for Demand: The Tribunal had to determine if the extended period for demand could be invoked on grounds that the appellant suppressed information with intent to evade tax. The appellant argued against this, but the Tribunal did not delve deeply into this issue as the appeal was decided on merits, negating the need for further discussion on the extended period. 3. Imposition of Penalties under Sections 76 and 78 of the Finance Act, 1994: The impugned order had imposed a penalty of 200% of the Service Tax under section 78 and another penalty under section 76. Given that the appeal was allowed on merits, the Tribunal found no grounds to discuss or uphold the penalties imposed. 4. Whether the Pipeline Laid for GWSSB Can Be Considered as Used for Commerce or Industry: The Tribunal examined if the pipeline constructed for GWSSB was primarily for commerce or industry. The appellant contended that GWSSB was not a commercial organization and the pipeline was for public utility, not commerce. The Tribunal cited the Nagarjuna Construction Co. Ltd. case, which concluded that GWSSB's activities were not commercial despite the sale of water at different rates. The Tribunal further emphasized that the primary purpose of the pipeline was to supply water to citizens, not for commercial gain. The revenue's argument that GWSSB's activities constituted commerce was rejected, as the primary intent was public service, not commercial enterprise. Conclusion: The Tribunal set aside the impugned order, ruling that the activity undertaken by the appellant did not fall under 'commercial or industrial construction service' and was not liable to Service Tax. Consequently, the penalties and extended period for demand were also dismissed. The appeal was allowed with consequential relief, affirming the non-commercial nature of the pipeline project for GWSSB.
|
