TaxTMI 
TaxTMI 
2010 (6) TMI 175
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...., learned advocate appearing for the respondents. 2. The facts of the case, in brief, are that the respondents are in the business of providing services under the category of "Commercial and Industrial Construction" and are holding valid registration. The respondents filed an application for refund for Rs.2,99,462/- on 17.10.2007 before the JAC on the grounds that they had paid it wrongly for the construction of road which is exclude from the category of "Commercial and Industrial Construction" as defined under clause (25b) of the Section 65 of the Finance Act, 1994. The said amount was paid against receipt of amounts for construction services rendered to a particular client during the period from 01.11.2006 to 31.03.2007. Since necessar....
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....metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fitting 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; Reading of the above clearly indicates that all services related to c....
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....he roads." 5. By observing as above, he allowed the refund of tax on the ground that construction of road does not call for payment of service tax and the refund is also not hit by the principle of unjust enrichment in as much as copies of the relevant invoice as also the certificate given by the client as also by the chartered accountant show that such amount was not recovered by the respondent from the customer. The said order of Commissioner (Appeals) is impugned before us. 6. The Revenue is aggrieved by the order on the ground that as per the contract entered into between the appellant and their customers there is no specific description of "road". The respondent had in fact constructed the driveway in the petrol pump of M/s. BPCL....
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....tax would be leviable on the gross amount charged for construction including the value of construction of road". As such it becomes clear that the value of construction of road is to be included in the value of the service only when there is no segregation between the construction of commercial complex and construction of the road. If the contract recognizes the two activities as separate activities, even though the construction of the road is in connection with the commercial complex, the benefit has to be allowed. As such the fact whether the road is being constructed for public utility purpose or as a part of a commercial complex is not relevant, in terms of the Board's Circular above. Accordingly we do not find any infirmity in the view....