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TMI Blog2024 (11) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... not taxable under the said head. Hence the demand in the present case is not sustainable. The impugned order is set aside. The appeal is allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR And HON'BLE MEMBER (TECHNICAL), MR. C L MAHAR Shri Amal Dave, Advocate for the Appellant Shri Himanshu P Shrimali, Superintendent (AR) for the Respondent ORDER RAMESH NAIR The issues involved in the present case are as under : - i) Whether the Hostel Building constructed for GAIMS (Gujarat Adani Institute of Medical Science) being an educational institute can be taxed under category of Commercial or Industrial Construction Service . ii) Whether the extended period of limitation can be invoked in the facts of the present case. 2. Shri Amal Dave Learned Counsel appearing on behalf of the appellant at the outset submits that this issue is no longer res-integra, as this Tribunal held in number of cases that any construction provided for a building which is for the purpose of educational intuition is not a commercial construction, therefore, the same is not taxable. 2.1 He further submits that appellant was under a bona fide belief that the term commercial or industrial construction servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such service is covered under Works Contract service therefore the claim of Commercial and Industrial Construction Services by the appellant as well as exemption under various sub-headings of the service was untenable. As against this, the learned advocate for the appellant takes us through various judgments to point out that the issue is no longer res-integra and has been decided in various matters. He seeks to rely upon the following judgments:- (a) Harsh Construction Pvt. Limited vs. CCE, Nasik - 2014(35) STR 617 (Tri.-Mumbai) (b) Jyoti Sarup Mittal vs. CCE, Delhi-l - 2017(3) GSTL 478 (Tri.-Del.) (c) Era Infra Engg. Pvt. Limited vs. CST, Delhi-l - 2018(19) GSTL 52 (Tri.-Del.) (d) G. Ramamoorthi Construction (1) P. Limited vs. Comm (Adj.), Coimbatore - 2015(40) STR 632 (Mad.) b) In the case of Maulana Azad National Institute of Technology (Supra) this Tribunal has passed the following order:- 6. After hearing both the parties, we are of the opinion that the question for being adjudicated are as follows :- (A) As to whether the appellant is a business entity. (B) As to whether the services as received by appellant from CPWD, a Govt. Department is a support service. (C) As to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 17th March, 2012, the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the following taxable services from the whole of the service tax leviable thereon under Section 66B of the said Act, namely :- xx xx xx 12. Services provided to the Government, a local authority or a governmental authority by way of construction, erection, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empted 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 65B(49) which read as follows :- Section 65B(49) support services means infrastructural, operational, administrative, logistic, marketing or any other support of any kind comprising functions that entities carry out in ordinary course of operations themselves but may obtain as services by outsourcing from others for any reason whatsoever and shall include advertisement and promotion, construction or works contract, renting of immovable property, security, testing and analysis; The bare perusal of this definition makes it clear that for any services received to 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. However, they have outsourced the same to someone else. In the present case, as discussed above, the appellant is carrying out the function of imparting education and the technical knowhow/consultancy but the service received from CPW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the purposes of profit, the same was out of the ambit of taxability. Confirmation of demand is therefore, an apparent mistake on the part of the adjudicating authority below. Once the demand is not sustainable, as discussed above, question of accruing interest and of imposition of penalty does not at all arise. 8. As a result of entire above discussion, the order under challenge is hereby set aside. Appeal is accordingly, allowed. c) In the case of Jatan Construction Pvt Ltd, (Supra) Hon ble Rajasthan High Court has passed the following order:- 3.5 Counsel for the appellant has also taken us through the finding of the first authority observing as under : 9. Result of Investigation : 9.1 Investigation conducted by DGCEL, Ahmedabad against M/s. Jatan Construction P. Ltd., Ajmer as discussed in the fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax of Rs. 5,45,77,175/- was issued by ADG O/O the DGCEI Zonal Unit, Ahmedabad. 17.3 Now I proceed to decide the case on merit. First of all I take up the issue of whether the assessee is sub-contractor of NBCC or [not]. Reliance is placed on letter No. NBCC/AGM/LOA/2009/1208, dated 15-1-2009, written by M/s. NBCC to the assessee, wherein cost of the project, period of construction and other terms and conditions of the agreement were mentioned. The assessee was directed to furnish bank guarantee, insurance coverage and obtaining statutory licenses. The letter written by Sh. A.K. Gupta AGM of NBCC, specifically mentioned that This letter of award shall form part of the contract agreement. This letter of award is being issued in duplicate. The duplicate copy is to be signed and stamped by the authorized signatory of your company and is to be returned to this office in token of your confirmation and acceptance in full . In this letter the contract was for construction of P.G. Hostel at SVNIT, Surat. The cost of the said project was revised vide letter, dated 12-3-2010. Similar Letter No. NBCC/GM-RBG (E I) ESIC/Jaipur/2009/1110, dated 3-3-2009 was for contract for construction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. 17.6 Explanation. - For the purpose of this sub-clause, works contract means a contract wherein (I) transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and (ii) such contract is for 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, Heating, 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, renovation or rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries case is found to be apposite. 10.13 Clause (e) of the definition of works contract--turnkey projects including engineering, procurement and construction or commissioning (EPC) projects--clearly conveys the legislative intent underlying the definition of works contract in relation to turnkey projects. It does not exclude EPC projects for irrigation, nor does it discriminate between EPC projects for commercial/industrial purposes and those for non- commercial/non-industrial purposes, nor between EPC projects of Government departments/agencies and private entities. What does not figure in the plain language of the entry cannot be read into it by this Tribunal. 4.1 He contended that the judgment which has been sought to be relied upon is subject matter of SLP before the Supreme Court. 5. However, in our considered opinion, the Tribunal clearly observed as under : 7. Admittedly, in the present case the construction activity of the appellant is with reference to student's hostel and the public hospital. These are non-commercial buildings. Accordingly, these are excluded from tax liability under works contract service. 6. It is thus clear that the hostel which was constructe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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