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TMI Blog2018 (5) TMI 822X X X X Extracts X X X X X X X X Extracts X X X X ..... the agreements with M/s Pooja Educational Society, Phagi and M/s Bansal Classes Pvt. Ltd, Kota for construction of the buildings for them. For proving such service, the appellant did not pay Service Tax on the ground that the service receivers were not providing any activities concerning to Commerce or Industry. However, the Department interpreted that the activities undertaken by the appellant should fall under the taxable category of Commercial or Industrial Construction Service, as defined under Section 65 (25b) read with Section 65 (105) (zzq) of the Finance Act, 1994. Accordingly, show cause proceedings were initiated against the appellant for confirmation of the Service Tax demand. 3. The matter was adjudicated vide the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply of material before the Original Authority, confirmation of the adjudged demand is proper and justified. 6. Heard both sides and perused the case records. 7. It is an admitted fact on record that the appellant had provided the construction service to M/s Pooja Educational Society, which is non-commercial organization, and is not involved in the activity of any business or commerce. Since the definition under Section 65 (105) (zzq) mandates that the activity of commercial or industrial construction should only be taxed, in absence of such construction undertaken by the appellant, we are of view that the Service Tax demand cannot be confirmed under that category of service. We find that in an identical situation, this Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of claim that mobilization advance was received and the same was adjusted towards the supply of material, the appellant did not produce any requisite documents, excepting a certificate issued by the M/s Bansal Classes Pvt. Ltd. Since the documents are required to be verified for ascertaining the fact whether, the said amount was towards supply of material or for providing service, we are of view that the matter should go back to the original authority for necessary verification of the desired documents. Therefore, with regard to the services provided to the M/s Bansal Classes Pvt. Ltd., after setting aside the impugned order, we remand the matter to the original authority for a fresh fact finding, whether the amount collected by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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