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TMI Blog2022 (6) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... activity of acoustic application or fittings or of the nature of fencing and railing. In that sense the activity of fixing chairs in a commercial establishment would be covered the description of service in the commercial or industrial construction service as defined in Section 65 (25b). The activity of laying of Synthetic Athletic Track Surface is akin to the activity of floor and wall tiling, wall covering and wall papering. The activity is of civil nature and, therefore, would be covered by the activities described in the definition of commercial or industrial construction service, however, since the same have been provided in respect of sport facilities owned by Government, State or Centre, the same would not be chargeable to tax. It is seen from the impugned order that since it was held that no refund is admissible, the ground of unjust enrichment as well as limitation were not examined - Since the issue of unjust enrichment, limitation and the implication of the decision of Apex Court in the case of ITC LIMITED VERSUS COMMISSIONER OF CENTRAL EXCISE, KOLKATA -IV [ 2019 (9) TMI 802 - SUPREME COURT] has not been examined by the lower authorities, its needs to be sent back ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial in nature. He relied on the decision of Tribunal in the case of B.G. Shirke Construction Technology Pvt. Ltd. versus Commissioner of Central Excise, Pune III [ 2013 (31) S.T.R. 52 (Tri. Mumbai) ]. 4. The appellant also argued that the services at Sl. No. 2 3 provided by them were in the nature of works contract as the contracts were inclusive of all the material. It has been argued in the appeal that as per terms of the contract the services rendered by the appellant was construction of 400 mtrs. Synthetic athletic track for SPDA at Dharamshala in Distt. Kangra (HP) (SH leveling of ground C/O Sub-grade, GSB/WBM, BM, SDBC on synthetic track, outer and inner drain and electric, telecommunication Pits etc.) vide Contract No. PWD/DD/CB/CF/R B/2010/-2011 dated 18.04.2011. It was argued that the said work relates to installation, erection and commissioning service in relation to sports stadium which is a civil structure. It was argued that the commercial or industrial construction service as defined in Section 65 (25b) [Finance Act, 1994] includes in its definition not only repair, alternation, renovation or restoration but also includes similar services in relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or (d) repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit, which is - (i) used, or to be used, primarily for; or (ii) occupied, or to be occupied, primarily with; or (iii) engaged, or to be engaged, primarily in, commerce or industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams;] 7. The nature of services provided by the appellant are : (i) providing and fixing of seating arrangement in a stadium ; (ii) providing and laying of Synthetic Athletic Track Surface in a sports facility. The service of providing and laying of Synthetic Athletic Track has been provided in respect of sports organization of Government, Centre or State. It has been argued by the appellant that the service provided by them is squarely covered by the description of services given in a commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used for educational, recreational, or cultural purposes. (d) Any park. The Tribunal based on the above concluded that stadiums were deemed to be public utilities. The Tribunal further ruled as under: 5.3 The Sports Stadia is used for public purpose. Merely because some amount is charged for using the facility, it cannot become a commercial or industrial construction. Even in a Children Park, entry fee is levied for maintenance of the Park. Merely because some amount is charged for using the Park, it cannot be said that it is a commercial or industrial construction. Adopting the same logic, the Sports Stadia in the present case is also a non-commercial construction for use by the public. Therefore, we are prima facie of the view that the Sports Stadium constructed for conducting Commonwealth Games, is a non-commercial construction. The activity undertaken in a stadium, which belongs to Government and is used for non-commercial activities, would not be covered under definition of CCIS as held by Tribunal in the case of B.G. Shirke Construction Technology Pvt. Ltd. In view of above, it is apparent that the activity of affixing chairs in a stadium would be covered under th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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