2019 (5) TMI 1099 - AT - Service Tax

Appellant wins refund claim for service tax on non-commercial construction services.

The Tribunal ruled in favor of the appellant in a refund claim dispute regarding service tax paid for construction services. It held that the service ... Refund of service tax paid - Industrial and Commercial Construction Service - Department was of the view that construction services rendered by appellant to M/s Bharat Dynamics Limited are subject to levy of service tax - Rejection of refund on the ground that the service recipient is a commercial concern and therefore the service tax paid is in order - HELD THAT:- The appellant had rendered the services to M/s Bharat Dynamics Limited which is a Public Sector Undertaking under the Ministry of Defence. The said organisation namely M/s Bharat Dynamics Limited is mainly/primarily engaged in defence production which are necessary for the country - The view taken by the Department that the said organisation is a commercial concern cannot be appreciated. The activity of construction of compound wall for M/s Bharat Dynamics Limited cannot be said to fall under the category of “Commercial or Industrial Construction Services” for the purpose of levy of service tax. The rejection of refund claim on this ground is unjustified. Appeal allowed - decided in favor of appellant. Issues:Refund claim under 'Industrial and Commercial Construction Service' for construction of compound wall; Whether service recipient is a commercial concern; Eligibility for refund; Interpretation of service tax levy.Analysis:The case involved a refund claim filed by the appellants seeking a refund of service tax paid for construction services rendered under 'Industrial and Commercial Construction Service' for constructing a compound wall. The department contended that the service recipient, M/s Bharat Dynamics Limited, was a commercial concern, justifying the levy of service tax. The original authority and Commissioner (Appeals) rejected the refund claim, leading to the appeal.The appellant argued that M/s Bharat Dynamics Limited, being a Public Sector Undertaking under the Ministry of Defence, was not a commercial concern. Citing the annual report of the Ministry of Defence, the appellant highlighted the organization's role in achieving self-reliance in defense production. The appellant relied on a previous tribunal decision that held a similar organization, the Ordnance Factory of the Government of India, was not a commercial concern, thus supporting their claim for a refund.The respondent supported the findings of the impugned order, emphasizing that the construction of the compound wall was not integral to the factory's operations and that the factory engaged in commercial activities by selling goods to the Defense of India. The respondent argued that the refund was rightly rejected based on these grounds.After considering the submissions and perusing the records, the Tribunal found that M/s Bharat Dynamics Limited was primarily engaged in defense production, a necessary activity for the country. The Tribunal disagreed with the department's classification of the organization as a commercial concern and held that the construction of the compound wall did not fall under 'Commercial or Industrial Construction Services' for service tax levy purposes. Consequently, the rejection of the refund claim was deemed unjustified, and the Tribunal ruled in favor of the appellant, allowing the appeal and granting any consequential reliefs.In conclusion, the Tribunal set aside the impugned order, allowing the appeal and providing the appellant with the eligible refund, emphasizing the non-commercial nature of the service recipient and the essential role played by the organization in defense production.