2013 (7) TMI 555 - AT - Service Tax

Commercial or industrial construction service penalty and Interest u/s 77, 78 and 75 - Held that - The order of the Commissioner (Appeals) is fundamentally misconceived thus quashed - the attribution by the appellate Commissioner of reasons recorded by the adjudicating authority are totally unfounded -the adjudication authority did not conclude or even observe that the service provided by the assessee is not service in relation to commercial building because it was constructed out of funds generated from persons other than the gas tragedy victims as observed by the appellate authority - the transaction in issue falls within the purview of Industrial and Commercial or Construction of Complex Service of buildings u/s 65 (25)(b) decided in favour of revenue.

Summary

Issues:
Appeal against order allowing respondent's appeal and rescinding adjudication order for failure to remit service tax for construction service provided to a trust. Interpretation of exemption notification and definition of commercial or industrial construction service.

Analysis:
The appeal was filed by the Revenue against the order passed by the Commissioner (Appeals) in favor of the respondent assessee, rescinding the adjudication order confirming the service tax demand, penalties, and interest. The assessee received payment for providing construction services to a trust but failed to remit service tax. The adjudicating authority confirmed the service tax demand, penalties under Sections 78 and 77, and interest, rejecting the assessee's claim for exemption under Notification No. 15/2006-ST. The contract was for construction of shops rented out for commercial purposes, falling under commercial or industrial construction service as per Section 65(25)(b) of the Act.

The appellate authority found errors in the adjudicating authority's conclusions, stating that the service provided was indeed in relation to commercial buildings and that the trust's charitable activities did not exempt the transaction from the definition of commercial or industrial construction service. The definition of commercial or industrial service focuses on the use of the building primarily for commerce or industry, not the recipient's general activities. The agreement was for constructing shops rented out for commercial purposes, falling within the definition of commercial or industrial construction service.

The appellate Commissioner's reasons were deemed unfounded as the adjudicating authority did not make the assumptions attributed to it. The appellate authority's conclusions regarding the trust's activities and the source of funds for construction were found to be incorrect. The order of the Commissioner (Appeals) was considered misconceived, and the adjudicating authority's order confirming the service tax demand was restored. Costs were not awarded in this decision.