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TMI Blog2024 (2) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... estoration or renovation. Even if it is assumed that the appellant had carried out renovation or restoration work, then too clause (d) of Explanation clearly provides that the activity should in relation to (b) and (c) . Thus, such activity has to be primarily for the purpose of commerce or industry. According to the Commissioner, the words primarily for commerce or industry figuring in clause (b) of the Explanation would not mean that if the construction is not meant for commerce or industry , it would not fall within the scope renovation or restoration work mentioned in clause (d) of the Explanation. In the absence of any finding recorded by the Commissioner that the construction was primarily for the purpose of commerce or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by them for commercial purpose. Thus, it appeared to the department that the said activity of renovation/restoration of old market complex at Ponda and Biocholim Municipal Council by the appellant to build new market complexes, which were further meant to be used for commercial purpose would be a taxable service under section 65(105)(zzzza) of the Finance Act. 4. The appellant submitted a detailed reply denying the allegations made in the show cause notice. Ultimately, by the impugned order dated 18.03.2015, the Commissioner confirmed the demand of service tax for the works awarded under the contract for Ponda and Biocholim and the findings are: 34. I find that the scope of Works Contract Service is much wider than Commercial o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld fall under these scope of condition (ii) (d) to the Explanation of Works Contract as defined in terms of Section 65 (105)(zzzza) of the Finance Act, 1994. Thus, I find that there is no merit in the argument of the Noticee that the service cannot be considered as Commercial or Industrial Construction Service as the proposal in the Notice is not to classify the service under the category of Commercial or Industrial Construction Service . Hence, I hold that the service rendered by the Noticee is appropriately classifiable under Works Contract Service . 35. In their reply, the Noticee stated that the allegations made in the Show Cause Notice are vague. The Show Cause Notice has not explained the nature of service rendered. Accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertaken at the existing market place at Bicholim would also squarely fall within the ambit of clause (d) to the Explanation. ( emphasis supplied ) 5. However, with regard to roadwork at Ponda Municipal Council and roadwork at Shantadurga Temple, the demands proposed in the show cause notice were dropped. 6. Shri Bharat Raichandani, learned counsel for the appellant submitted that in the absence of any finding recorded by the Commissioner in the impugned order that the activity undertaken by the appellant involved any element of commerce or industry , the demand could not have been confirmed under section 65(105)(zzzza) of the Finance Act. Learned counsel also submitted that the extended period of limitation contemplated und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oning 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, heating, ventilation or air-condition 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 a 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction would not be taxable under section 65(105)(zzzza) of the Finance Act. 13. Even if, as contended by the appellant that the activity carried out by the appellant is one of construction of a new building, is accepted, then too the requirement of primarily for the purpose of commerce or industry has to be satisfied. 14. In the absence of any finding recorded by the Commissioner that the construction was primarily for the purpose of commerce or industry , it is not possible to sustain the demand under section 65(105)(zzzza) of the Finance Act. For this reason alone, the order dated 18.03.2015 passed by the Commissioner deserves to be set aside. 15. The contention of the learned authorised representative appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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