2013 (10) TMI 915 - AT - Service Tax

Taxability of Cleaning service provided to charitable school - Whether the building of ISB can be considered as a commercial building - Stay application - Held that - meaning of used or to be used for commerce or industry was considered and there it was observed that when the constructions 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 have to be treated as non-commercial. It is his submission that ISB is a charitable trust and therefore, the building has to be considered as non-commercial and therefore, it goes out of the definition - cleaning services in respect of non-commercial buildings and premises thereof is not covered for the purpose of levying of service tax. Retrospective amendment was basically to clarify the meaning of expression Commercial Training or Coaching Centre - What is under consideration by us is cleaning services and not commercial training or coaching service. In our opinion, the retrospective amendment and the decisions of the Tribunal in relation to Commercial Training or Coaching Centre cannot be applied to the cleaning services In cleaning service, what is required to seen is the purpose of building and the purpose of the building has to be examined in the light of understanding whether it is commercial or industrial building and how a layman understands the same. In the case of Commercial Training or Coaching Centre , the definition itself has been amended to ensure that even if the charitable trust rendering a commercial training or coaching centre, the same may be liable to tax - Stay granted.

Issues:
1. Waiver of pre-deposit and stay against recovery for service tax demand on cleaning services provided to an educational institution.
2. Determination of whether the educational institution's building can be considered a commercial building.
3. Interpretation of circulars issued by the Board in relation to service tax on cleaning services.
4. Analysis of relevant case laws and their applicability to the current case.

Issue 1: Waiver of Pre-deposit and Stay Against Recovery
The appellant sought waiver of pre-deposit and stay against recovery for the demand of service tax on cleaning services provided to an educational institution. The advocate argued that the cleaning activity undertaken by the appellant for the educational institution should not be covered under the definition of cleaning services provided to commercial or industrial buildings. The Tribunal considered the submissions and found that the appellant had a strong prima facie case. Consequently, the Tribunal granted waiver of pre-deposit and stay against recovery during the pendency of the appeal.

Issue 2: Classification of Educational Institution's Building
The main question revolved around whether the building of the educational institution could be classified as a commercial building. The appellant contended that the educational institution, being a charitable trust, should be considered non-commercial. The Tribunal referred to circulars issued by the Board, noting that cleaning services in non-commercial buildings were not leviable to service tax. The Tribunal also highlighted previous decisions where services to non-commercial buildings were not subject to service tax. Ultimately, the Tribunal concluded that the purpose of the building had to be examined to determine if it was commercial or industrial, and in this case, the educational institution's building was considered non-commercial.

Issue 3: Interpretation of Circulars and Amendments
The Tribunal analyzed circulars issued by the Board in 2004 and 2005 regarding the meaning of 'commercial' and 'non-commercial' buildings for the purpose of service tax on cleaning services. The Tribunal noted that the circulars indicated that cleaning services in non-commercial buildings were not subject to service tax. Additionally, the Tribunal considered a retrospective amendment brought in by the Finance Act of 2010, which clarified the meaning of 'Commercial Training or Coaching Centre.' The Tribunal differentiated between commercial training services and cleaning services, emphasizing that the retrospective amendment did not apply to cleaning services provided to non-commercial buildings.

Issue 4: Applicability of Case Laws
The Tribunal examined various case laws cited by both parties to support their arguments. The appellant relied on decisions where services to non-commercial buildings were not taxed. In contrast, the respondent referred to a specific case to argue against the appellant's eligibility for exemption. The Tribunal distinguished between cases related to commercial training services and cleaning services, emphasizing that the retrospective amendment and decisions regarding commercial training did not directly apply to cleaning services. The Tribunal ultimately found the appellant's case strong and granted the waiver of pre-deposit and stay against recovery.

This detailed analysis of the judgment highlights the key issues addressed by the Tribunal, including the classification of the educational institution's building, interpretation of circulars and amendments, and the applicability of relevant case laws in determining the liability for service tax on cleaning services provided to non-commercial buildings.

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