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TMI Blog2016 (2) TMI 486X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of profit, (c) and appellant recovered the amount of service tax by way of issuing debit note. Held that:- it is clear that building constructed by the respondent is not commercial and industrial construction, therefore does not fall under the category of taxable services, as the same is not used for commercial and industry but it is used for providing education. Therefore service tax paid by the respondent is liable to be refunded. - there is no dispute raised as regard the facts that the respondent by issuing credit note not collected the service tax from the service recipient. Ld. Commissioner (Appeals) by proper application of mind set aside rejection of refund claim and allowed appeal of the respondent. - Refund cannot be denied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... educational, religious, charitable, health, sanitation or philanthropic purpose and not for any purpose of profit, (c) and appellant recovered the amount of service tax by way of issuing debit note. Aggrieved by the said Adjudication order, appellant filed appeal before the Commissioner (Appeals) who allowed the appeal after considering that the building is college building for educational purpose and it is approved by All India Council for Technical Education (AICTE) therefore it is other than construction for commercial or industrial construction, hence the same is not taxable. The Ld. Commissioner also referred to the Circular NO. 80/10/2004 dated 17/9/2004 wherein para 13.2 it was clarified that Trust will not subject to service tax. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, even though the client of the respondent for whom building was constructed is charitable trust merely because of this reason the service tax on construction services does not get exempted. 4. On the other hand, Shri Vinay Jain, Ld. CA appearing on behalf of the respondent submits that service tax is applicable only on the commercial and industrial construction. In the present case on the basis of various evidences such as recipient of service is public charitable trust registered under Bombay Public Trust, 1950, the building is being used for the purpose of Educational Institute, the respondent have produced approved building plan. It is proved that building is used for charitable trust for the only purpose of running Educational Insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilding constructed by the respondent is not commercial and industrial construction, therefore does not fall under the category of taxable services, as the same is not used for commercial and industry but it is used for providing education. Therefore service tax paid by the respondent is liable to be refunded. On going through the grounds of appeal, we observe that there is no dispute raised as regard the facts that the respondent by issuing credit note not collected the service tax from the service recipient. On going through judgments cited by the respondent, we find that some of the judgments had directly on the issue of construction of Educational institute and the ratio of the judgments are applicable in the present case. we also gone t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not for the purposes of commerce or industry. Constitution of said service recipient lays the object and rules and regulation governing the trust. Para 5 of such constitution demonstrates that the only object of said service recipient is to provide various educational facilities to general public and undertake other activities helpful for education. Such sole object of said service recipient justifies that college building constructed by the appellant is to be used for the sole purpose of education, and not for any commercial or industrial purposes. Attention is also invited to para 38 of constitution of the said trust which restricts the trust to apply any surplus for any purpose other than object of said service recipient, prevents said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore clear from the fact the service recipient is involved in non-profit making activities, and services received by said service recipient was utilized for its sole educational purposes and not for the purposes of profit. Therefore, services of constructing college building rendered by appellant to said services namely "Commercial and Industrial Construction services" and tax on those services was wrongly paid by the appellant. 11. It is pertinent to mention that the amount of service tax and interest thereon was refunded to said service recipient by the appellant by crediting such amount to their account and thereby adjusting it with the amount receivable for the entire works from said service recipient. Therefore, thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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