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TMI Blog2017 (3) TMI 1458X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. - Service Tax Appeal No. 55892 & 56509 of 2013 - ST/A/51870-51871/2017 -CU[DB] - Dated:- 9-2-2017 - Mr. (Dr.) Satish Chandra, President And Mr. Ashok K. Arya, Member (Technical) (Rep. by Sh. Atul Gupta, CA Varun Gaba, Adv.) (Rep by Sh. Sanjay Jain, DR) Per (Dr.) Satish Chandra Both the appeals - (i) A.No. ST/55892/2013 by the assessee-Appellants; and (ii) A.No.ST/56509/2013 by the Department are filed against the common order-in-origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides have filed the cross appeals. 4. With this background, we have heard Shri Atul Kumar Gupta, Chartered Accountant and Shri Varun Gaba, learned counsel for the assessee-Appellants and Shri Sanjay Jain, learned DR for the Department. We have also perused the written submissions of the assessee-Appellants. 5. After hearing both sides, it appears that the assessee-Appellants have claimed the construction of the works contract and the Department has treated the same as Commercial or Industrial Construction Services . It may be mentioned that Section 65(105)(zzzza) defines the works contract service and works contract as follows : (zzzza) to any person, by any other person in relation to the execution of a works contract, exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Central Excise Customs, Nashik, 2014 (35) STR 617 (Tri.-Mumbai), wherein it was observed that : 5.2 From the above definitions, especially the underlined portions, it is crystal clear that for a construction to be levied to Service Tax, whether under commercial or industrial construction service or under works contract service the same has to be used for commerce or industry. The construction of colleges, Government hospitals or open university cannot be said to be commercial or industrial in nature. In other words, at the relevant time, the levy did not cover non-commercial or non-industrial construction (other than residential). Therefore, prima facie, there is merit in the contention of the appellant that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or philanthropic purposes and not for the purposes of profit are not taxable, being non-commercial in nature. Generally, government buildings or civil constructions are used for residential, office purposes or for providing civic amenities. Thus, normally government constructions would not be taxable. However, if such constructions are for commercial purposes like local government bodies getting shops constructed for letting them out, such activity would be commercial and builders would be subjected to service tax. It appears that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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