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TMI Blog2013 (8) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Ltd.(NBCC) and Service Tax of Rs.84.44 Lakhs and penalties by M/s. Simplex Projects Ltd. (Appeal No.S.T.154/11). 2. We have heard Shri J.K. Mittal, Ld.Advocate and Shri Rajeev Agarwal, Chartered Accountant at length on the issues involved, which are common, hence, taken up together for disposal. Shri J.K. Mittal, Ld. Advocate for M/s NBCC has submitted that under a Central Govt. Sponsored Scheme, meant for eradication of urban unemployment and poverty alleviation programme, grants were received by the State Govt. of Tripura from the Central Govt.. Consequently, the applicant M/s. NBCC has been entrusted the project of constructing a marketing complex by the Govt. of Mnaipur for execution of the same. M/s. National Building Constructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction is incorrect. The Ld. Advocate has submitted, assuming the said service is taxable, at best the service rendered by them for execution could at the most fall under the scope of business auxiliary service. The Ld. Advocate further submitted that even though the demand notice was issued for extended period of limitation, and specifically they have pleaded the issue of time bar before the Adjudicating Authority, the Ld. Adjudicating Authority has not recorded any on the said plea. 3. Shri Rajeev Agarwal, Ld. Chartered Accountant for M/s Simplex Projects Ltd. has submitted that the entire project has been implemented by them under the bona fide belief that the same is meant for an activity which is not related to commerce or profit orien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Rs.5,00,000/-. 4. Ld. A.R. for the Revenue has submitted that the source of the funds is immaterial in classifying the Service; the nature of services that are rendered by the applicants are the decisive factor for determining whether the applicants had provided the services under the category of 'commercial or industrial construction service' as defined under Section 65(105)(zzq) of the Finance Act, 1994. The Ld. A.R. has further submitted that the very project which the applicants had implemented relates to construction of marketing complex. Primarily, the marketing complex is meant for furtherance of commerce or industry. The applicant could not prove that the services rendered by them were not used for the purpose of commerce and ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said projects, it has been used for the purpose other than a marketing or commercial complex as observed by the Ld. Commissioner, even though it was constructed under central Govt. sponsored scheme. Prima facie, also, we find force in the argument the Ld. Adv. for NBCC that they had only acted as an executor and not rendered service in the construction of the Marketing complex, hence, service tax is not payable by them under the category of commercial or industrial construction service. Also, we find force in the argument that even though the issue of limitation has been raised but the Ld. Commissioner has not recorded any finding on the same. In these circumstances, keeping in view the principle of law laid down by the Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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