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TMI Blog2018 (9) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... be called as support service, the important ingredient is that the support should have comprised of such functions that the recipient is able to carry out in ordinary course of operations themselves - In the present case, the appellant is carrying out the function of imparting education and the technical knowhow/consultancy but the service received from CPWD is that of construction of various civil structures. It becomes absolutely clear that the services received are not otherwise the activity of the appellant themselves. Outsourcing thereof will not bring the service received under the category of support service. Therefore, the adjudicating authority below has formed a wrong interpretation of the definition while holding the impugned services received as the support services. Whether the demand as confirmed is sustainable? - Held that:- Since impugned period is the post negative list period, section 67 D is relevant. This provision excludes the services provided by a Government or a local authority from the ambit of taxability. Apparently the service provider herein is a Govt. authority - The services are not taxable - Once the demand is not sustainable, question of accruing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Govt. authority as being established under an Act of Parliament namely the National Institute of Technology Act, 2007, which is dedicated to education, as such, they are out of the ambit of taxability. It is also impressed upon that the impugned period is a post negative list period and there has been a Notification bearing No.25/2012 dated 20th June, 2012 which specifically exempts the impugned activity from being liable to tax. The memorandum of understanding between appellant and CPWD dated 20th December, 2008 as annexed with the appeal Memo is impressed upon as a document to prove that the activity herein cannot fall under the alleged category of support service. The order accordingly is prayed to be set aside. Appeal is prayed to be allowed. 5. While rebutting these arguments, ld. DR has relied upon the definition of support service under Section 65 B (49) of Finance Act 1994 impressing upon that the adjudicating authority has rightly held the services received by the appellant from CPWD to clearly fall under the ambit of the support services. The appellant has rightly been held as a business entity. Resultantly, there is no infirmity in the order under challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, workshop, publications and even technical consultancy, the Unit thereof assisting in the said work becomes the part of the parent institute and stands clothed with the same status. The adjudicating authority below though has relied upon the provisions of negative list i.e. 66 D (a) (iv) while confirming the demand but the above discussion makes it clear that since the object of appellant is to impart education the same cannot be held to be a business entity. The findings of order under challenge are therefore, opined not sustainable. Further Notification No. 25/2012 dated 20th June 2012, as brought to our notice by the appellant is also perused. It reads as follows:- Notification No. 25/2012-S.T., dated 20 Jun., 2012 Exemptions from Service tax - Mega Notifications - Notification No. 12/2012-S.T. Superseded In exercise of the powers conferred by sub-section (1) of Section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act) and in supersession of Notification number 12/2012-Service Tax, dated the 17th March, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (i) vide number G.S.R. 210(E), dated the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernmental authority means an authority or a board or any other body; (ii)set up by an Act of Parliament or a State Legislature; or (iii) established by Government, with 90% or more participation by way of equity or control, to carry out any function entrusted to a municipality under Article 243W of the Constitution; xx xx xx The perusal of both these Notifications shows that any authority, which is set up by an Act of Parliament or is established by a Government is a Governmental authority and any services provided to a Governmental authority by way of construction, errection, commissioning, installation, even repair, maintenance, renovation or alteration of any civil structure are exempted from the purview of taxable services. (B) Now coming to the issue of the services herein to be classified as support service or not. The definition thereof is relevant as mentioned in Section 65 B (49) which read as follows:- Section 65 B (49) support services means infrastructural, operational, administrative, logistic, marketing or any other support of any kind comprising functions that entities carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-ST dated 17th September, 2004 which reads as follows:- The leviability of service tax would depend primarily upon whether the building or civil structure is used, or to be used‟ for commerce or industry. The information about this has to be gathered from the approved plan of the building or civil construction. Such constructions which are for the use of organizations or institutions being established solely for educational, religious, charitable, health, sanitation 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. In view of this circular impugned services received by the appellant from Governmental body are the services received by an Institute established solely for educational purposes and not for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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