2017 (3) TMI 1458 - AT - Service Tax

Classification of service - Construction Services - classified under Commercial or Industrial Construction Services or works contract services? - Held that - it appears that the entire construction services are meant for educational institutions or for the welfare of the State which are not commercial or industrial in nature - the institutions, being established solely for educational, religious, charitable, health, sanitation etc., are exempted from the Service Tax, but, when the Government construction is used for commercial or industrial purposes like shops and houses etc., then the same is within the clutches of the Service Tax - we remand the matter to the original authority for examining the nature of each entity for which the construction was made whether the same falls under the Commercial or Industrial Construction Services or not - appeal allowed by way of remand.

Summary

Issues:
1. Classification of construction services as "Commercial or Industrial Construction Services" for Service Tax liability.
2. Interpretation of Section 65(105)(zzzza) defining "works contract service" and "works contract."
3. Exemption of construction services for educational institutions from Service Tax.

Analysis:
1. The case involved appeals by both the assessee-Appellants and the Department against an order passed by the Commissioner of Service Tax, New Delhi. The dispute revolved around the classification of construction services provided by the assessee-Appellants as "Commercial or Industrial Construction Services" for the purpose of Service Tax liability.

2. The assessee-Appellants were engaged in providing "Construction Services" and were registered with the Service Tax Department. The Department raised a demand, which was partially dropped, resulting in a sustained demand. The key issue was whether the construction services provided fell under the definition of "works contract service" as per Section 65(105)(zzzza) of the Finance Act.

3. The Tribunal referred to the case law of Harsh Constructions Pvt. Ltd. vs Commissioner of Central Excise & Customs and the judgment of the Madras High Court in G. Ramamoorthi Constructions (I) P. Ltd. vs Comm. (ADJ) to analyze the nature of construction services provided for educational institutions. The Tribunal noted that construction for educational institutions or for the welfare of the State, which are not commercial or industrial in nature, may be exempt from Service Tax liability.

4. The Tribunal considered the Board Circular No. 80/2004-ST, which clarified that constructions for organizations or institutions established solely for educational, religious, charitable, health, sanitation, or philanthropic purposes, and not for profit, may be non-taxable. Government constructions used for commercial purposes, however, could be subject to Service Tax.

5. Ultimately, the Tribunal upheld the impugned order, providing a benefit for educational institutions and dismissing the appeal filed by the Department. The matter was remanded to the original authority to examine the nature of each entity for which the construction was made to determine if they fell under "Commercial or Industrial Construction Services."

6. In conclusion, the appeal filed by the Department was dismissed, and the appeal filed by the assessee-Appellants was allowed by way of remand for further examination of the nature of the construction services provided.