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TMI Blog2022 (11) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax in terms of Notification No. 45/2010 ST dated 20.07.2010. The decisions relied upon by the Appellant in this context also support the claim of appellant, however we do not find any finding on this aspect in impugned order. Similarly from the definition of commercial or industrial construction service defined in Section 65(25b) it is found that the said definition exclude the services provided in respect of road and transport terminals. The definition of residential complex as defined in Section 65(91a) of Finance Act 1994 also does not include a complex which is intended for personal use as residence, the explanation clause of said definition also defined personal use includes permitting the complex for use as residence by another person on rent or without consideration. The Notification No. 17/2005 S.T. dated 07.06.2005 exempts Site Formation and clearance, excavation and demolition and such other similar activities carried out in the course of construction of roads, Airports, Railways, terminal, bridges, tunnels, dams, ports or other ports etc. from the levy of service tax. In respect of other services also appellant claim the service tax exemption. In support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the land provided by Gujarat State Road Transport Corporation, under Build, Transfer and Lease (BTL) Scheme; (iv) Construction of Residential Houses for Gujarat State Police Housing Corporation Ltd., Gandhinagar; (v) Construction of Boy s Hostel Building for Navsari Agricultural University; (vi) General earth filling for the embankment construction behind retaining wall in Sabarmati River, Ahmedabad on behalf of Sabarmati River Front Development Corporation Ltd. Though appellant had provided the above work/ services covered under the taxable services of works contract service, Commercial Industrial Construction Services, Construction of Complex Service and the Site formation and Clearance, Excavation and Earth Moving and Demolition Service, not paid the service tax. 2.1 After detail investigation show cause notice dated 18.03.2011 was issued to the Appellant proposing service tax demand and to imposed penalty under Section 76, 77 and 78 of the Finance Act, 1944. Thereafter, after following the due process, the Learned Commissioner, passed the impugned order as under: (i) Confirm the demand of Service tax of Rs. 2,72,71,371/- under the category of Works Contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmercial or Industrial Construction services and are specifically exempted / not taxable. 3.2 He also submits that it is clear from the tender copy issued by M/s GSRTC that the Appellant has to use material and supply the services. The said services are properly classified under the taxable category of works contract services. In any case, the proper classification of Services performed for M/s GSRTC would be works contract service and therefore, not taxable under Commercial or Industrial Construction services as held by Ld. Commissioner. He placed reliance on the decision of M/s Real Value Promoters 2018-VIL-648-CESTAT-CHE-ST. 3.3 He further submits that demand of service tax under the taxable category of construction of complex services for Gujarat State Police Housing Corporation is not sustainable. From the definition of residential complex as defined in Section 65(91a) of Finance Act, 1994 it is clear that if the construction of complex is intended for personal use as residence by such person then it is not taxable. He placed reliance on the following judgments: Khurana Engineering Ltd. 2011(21)STR 115(Tri. Ahmd) M/s S. Kadirval 2018(6) TMI 926- CESTAT Che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AT (New Delhi) India Guniting Corporation Vs. CCE,- 2021(2)TMI 400-CESTAT, New Delhi Ashish Ramesh Dasarwar Vs. CCE- 2017-TIOL-3230-CESTAT MUM Sem Construction Vs. CCE- 2020 (8)TMI 739 CESTAT Ahmedabad Shree Hindustan Fabricators Vs. CCE- 2002(2)TMI -110-CESTAT Ahmedabad Messrs N J Devani Builders Pvt. Ltd. Vs. UOI 2020(11)TMI -798 (GUJ) Scone Global Pvt. Ltd. Vs. Commissioner of Service tax- 2022-VIL-550-CESTAT-DEL-ST Ramky Infrastructure Ltd. Vs. Commissioner of Central Tax 2022-TIOL-682-CESTAT-HYD. ITD Cementation India Ltd. Vs. C.S.T. Mumbai-V- 2014(36)STR 897(Tri. Mumbai) 4. On the other hand, Learned Shri Vinod Lukose, Superintendent (Authorized Representative) reiterated the findings of the impugned order. He submits that Appellant s claim that their services are under Commercial or Industrial Construction services and not under Works Contract Service is not acceptable as there is supply of goods also. Since the appellant s contract is supply of goods as well as Service same falls under works contract service. Apart from GETCO, Appellant has provided works contract service to AUDA and AMC and since the AMC is charging fees from the users, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Vs. CCE, Rajkot. Commissioner Vs. L T Ltd. -2012(26)STR J142 (Guj) Karnataka State Warehousing Corporation Vs. CST, Bangalore 2010(19)STR 32(Tri. Bang) Karnataka Govt. Indurance Dept. Vs. Asst. CCE, Bangalore 2012(26)STR521(Kar.) Katira Construction Ltd. Vs. CST, Rajkot 2016(46)STR 329(Tri. Ahmd) Commissioner Vs. Lanco Infratech Ltd. 2016(43)STR J28 (SC) Central India Engineering Co. Vs. CCE, Nagpur 2016(44)STR 657 (Tri. Mum) Chaitanya Constructions Vs. CST, Visakhapatnam I 2015(38)STR 1146 (Tri. Bang) Deogiri Infrastructure Pvt. Ltd. Vs. CCE, Aurangabad 2017(5)GSTL 45 (Tri.-MUM) Sew Construction Ltd. Vs. CCE, Raipur 2011(22)STR 666(Tri. Del) Ambalal Chauhan Vs. CST, Raipur 2020 (33) GSTL 187 (Chhattisgarh) Graphite India Ltd. Vs. CCE, Nashik 2014(36)STR 948 (Tri. Mum) Sheladia Rites Vs. CST, Visakhpatnam I 2019(27)GSTL 707(Tri. Hyd) Cellebrum Technologies Ltd. Vs. CCE, Chandigarh 2015-TIOL-1098-CESTAT DEL Krishna Engineering Works Vs. CCE, Vadodara I- 2019(22)GSTL -409 (Tri. Ahmd.) Greater Noida Industrial Development Authority Vs. CCE 2015-TIOL-1008-HC-ALL-ST 4.6 After considering the submissions of both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use includes permitting the complex for use as residence by another person on rent or without consideration. The Notification No. 17/2005 S.T. dated 07.06.2005 exempts Site Formation and clearance, excavation and demolition and such other similar activities carried out in the course of construction of roads, Airports, Railways, terminal, bridges, tunnels, dams, ports or other ports etc. from the levy of service tax. In respect of other services also appellant claim the service tax exemption. In support of their arguments appellant also produced work orders issued by Ahmedabad Municipal Corporation, Gujarat State Police Housing Corporation Ltd., Navsari Agricultural University, Gujarat State Road Transport Corporation and Sabarmati River Front Development Corporation Ltd. 4.8 We also find that in the impugned matter the as regard the exemptions appellant also not produced their claim properly before the adjudicating authority with supporting documents. It is seen that the Ld. Commissioner has also not examined the claim of appellant properly, therefore, we find it appropriate to remand the matter to the Commissioner to examine this issue afresh, after taking into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X
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