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TMI Blog2022 (3) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... quired or gather the information as to whether the buildings or civil structures were being used or to be used for the purpose of making profit or not and clarified that if the building or civil structure was used or to be used not for the purposes of profit then the same are not taxable. Invocation of extended period - HELD THAT:- The issue involved is of interpretation and thus, the bona fides of the appellants to hold a different opinion cannot be suspected and thus extended period cannot be invoked. The impugned order is not sustainable on merits as well as limitation - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 52516 of 2016 - Final Order No. 50296/2022 - Dated:- 29-3-2022 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) and MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Ajay Kumar Mishra, Advocate for the Appellant. Shri Harsh Vardhan, Authorized Representative for the Respondent ORDER The appellants M/s Rajendra Mittal Construction Company Private Limited are engaged in execution of contracts with M/s Shree Cement Limited, Beawar and M/s Wonder Cement Limited and M/s Power Grid Corporation of India for construction of r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are intended for personal use of Government of India; the same logic should apply to the activity undertaken by the appellants . 4. He further submits that construction of residential quarters cannot be subjected to levy of service tax under any taxable services of works contract service or construction of complex service or commercial or industrial construction service as held by the Tribunal in the case of Khurana Engineering Ltd. Vs. Commissioner 2011 (21) STR 115 (Tribunal) and Sugandha Construction Pvt. Ltd. Vs. CCE, Bhopal - 2018 (9) GSTL 399 (Tri.-Del.). He also submits that it was held in Final Order No. ST/A/58728/2017-CU(DB) dated 29.12.2017 that construction of a guest house by the appellant for a cement company was not taxable. He submits that works contract service introduced with effect from 1.6.2007 essentially incorporates the existing construction of complex service and erection, commissioning or installation services and, therefore, if the activity is excluded from the existing services the same would remain excluded from works contract service; in view of the Circular dated 24.-5.2010 construction of residential quarters for staff being for personal us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution of a works contract, excluding works contract in respect of roads, airports, transport terminals, bridges, tunnels and dams. Explanation: For the purposes of this sub-clause, works contract means a contract Wherein,- (a) Transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and (b) (ii) such contract is for the purpose of carrying out,- a) erection, commissioning or installation of plant, machinery, equipment or structures, whether pre-fabricated or otherwise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, hearing, ventilation or, air-conditioning including related pipe work, duct work and sheet metal work, thermal insulation, sound insulation, fire proofing or water proofing, lift and escalator, fire escape staircases or elevators; or b) construction of new building or a civil structure or a part thereof, or of a pipeline or conduit, primarily for the purposes of commerce or industry; or c) construction of a new residential complex or a part thereof; or d) completion and finishing services, repair, alteration, renova ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 13.2 The Leviability of service-e 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. 13. In the instant case, it is not the case of the department that the residential quarters, the construction of which was undertaken by the appellants, for Shree Cements Ltd, Bewar, Wonder Cements Ltd, Nimbahera and Power Grid Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. We find that the department relied upon the ratio of Tribunals decisions in the case of M/s Jambeshwar Constructions Co Manu/ CE/ 0477/2019 and M/s Pragati Edifice Pvt Ltd (Manu/CH/0137/ 2019). We find that the facts of the case are not similar to the case of M/s Jambeshwar Constructions as in that case demand of service tax was made on Construction of Residential Complex Service‟. Tribunal held that as the work undertaken by the appellants therein was works Contract Service‟ demand under Construction of Residential Complex Service‟ cannot be sustained after 1.6.2007. Similarly, the facts of the case of M/s Pragati Edifice Pvt Ltd are not comparable, as the construction of a Hospital and Administrative Building were in question therein and not the Residential quarters. 16. We find that the appellants have contested the invocation of extended period. They submit that extended period cannot be invoked as entire records of the appellant for the period were audited and no objection was raised on the issued and more so because the issue involves interpretation of statute, accordingly, penalty under Section 78 cannot also be invoked. We find that the issue in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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