2017 (8) TMI 518 - AT - Service Tax

Commercial and Industrial Construction Service - whether construction activity done for APMC and for CWC are taxable under Commercial and Industrial Construction Service? - CWC Warehouse located in Railway side - CBEC Circular No.157/8/2012-ST dt. 27.4.2012 and Circular No. 80/10/2004-ST dt. 17.9.2004 - Held that - following the CBEC Circular, we can reach to the conclusion that the activities of APMC in respect of these contracts are not commercial in nature. Thus these contracts are not covered under the purview of commercial and industrial construction service. Warehouses are specifically covered under the term Railways and they need not necessarily belong to railways. In these circumstances, it is immaterial if the said warehouses are used commercial or otherwise, as the same are not covered within the purview of commercial and industrial construction service. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Taxability of construction activity for APMC under Commercial and Industrial Construction Service.
2. Taxability of construction activity for CWC Warehouse located in Railway premises under Commercial and Industrial Construction Service.

Analysis:

Issue 1: Taxability of construction activity for APMC
The appellant argued that the construction activity for APMC, a statutory body assisting farmers, should not be taxable under Commercial or Industrial Construction Service as APMC is considered charitable. The appellant relied on a High Court decision and claimed that APMC contracts were works contracts inclusive of material, exempting them from service tax pre-1.6.2007. The Tribunal referred to CBEC Circulars stating APMC services are classified as Business Auxiliary Service (BAS) and not Business Support Service (BSS), thus falling under the exemption. The Tribunal held that APMC activities were non-commercial, hence not taxable under commercial and industrial construction service.

Issue 2: Taxability of construction activity for CWC Warehouse
Regarding the construction activity for CWC Warehouse in Railway premises, the appellant argued that such warehouses were not covered under Commercial or Industrial Construction Service as Railways were excluded from the definition. The Tribunal noted that Railways' definition encompassed warehouses, regardless of commercial use. Therefore, the Tribunal allowed the appeal, stating that the warehouses' location within Railway premises exempted them from the purview of commercial and industrial construction service.

In conclusion, the Tribunal allowed both appeals, emphasizing that APMC's charitable nature and CWC Warehouse's location within Railway premises exempted the construction activities from being taxable under Commercial or Industrial Construction Service.