2016 (2) TMI 486

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....llowed the appeal of the Respondent. 2. The facts of the case are that respondent are registered with the Service Tax Department and providing services under the category of 'Construction Service' in category of "Commercial or Industrial Buildings and Civil Constructions" and "Constructions of Complex Services" in terms of Section 65(105)(zzq) and Section 65(105)(zzzh) of Chapter V of the Finance Act,1994. They filed refund claim for a sum of Rs. 70,16,333/- in respect of the Service the Service tax paid by them during the period from April, 2011 to March, 2012 on services of constructions of college building under category of taxable services namely Commercial and Industrial construction Services. The said refund claim was rejected ....

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.... 3. Ms. P.V. Sekhar, ld. Dy. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the grounds of appeal and further submits that whether the building is used for commercial and industries or otherwise can be ascertained only from the approved plan of building for civil construction. The respondent have not produced any approved plan of building/civil construction. There is no MOU or Certificate from statutory/municipal body to show that construction would be used for educational, religious or charitable purpose etc and not for any purpose of profit. She further submits that as per CBEC Master Circular No. 96/7/2007-ST dated 23/8/2007 wherein it was clarified that "Exemption under the Income Tax Act on the ground of being a pu....

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.... CCE [2014(33) STR 77 (Tri-Mumbai)] (b) Anand Construction Company vs. CCE [2013-TIOL-238-CESTAT-MUM] (c) Anand Construction Company vs. CCE [2015-TIOL-1145-CESTAT-MUM] (d) Shivprasad Construction vs. CCE [2015-TIOL-1127-CESTAT-MUM] (e) Singhania Enterprises vs. CCE [2014-TIOL-2018-CESTAT-DEL] 5. We have carefully considered submissions made by both sides. 6, We find that in view of the various documentary evidence and analysis thereof and also considering the observations of the Ld. Commissioner (Appeals) on this, there is no doubt that building constructed by the respondent is college building which is carrying out Technical Education and same is approved by AICTE, Technical and Higher Education D....

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.... registered under Bombay Public trust Act,1950. The said service recipient has been formed ad registered to carry out the object of providing education facilities to general public. It is, therefore, evident that the building whose construction services are rendered by Appellants is to be utilized for educational purpose and not for any commercial or industrial purpose. 9. It is pertinent to mention that, Letter of Approval from 'All India Council for Technical Education' which is statutory body under Ministry of HRD, Government of India read with letter of approval from 'Technical & Higher Education Department, Government of Maharashtra' conveys the approval of statutory bodies to said service recipient for commencing the ....

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....ginal approved plan of the building submitted by the appellant clearly proved that the building was to be used for non commercial purpose. Circular NO. 80/10/2004 dated 19/9/2004 in para 13.2 has also made it clear that such trust will not be subjected to service tax. In this regard attention is drawn to Section 2(13) of Bombay Pubic trust Act, 1950 which reads as: "Public Trust" means an express or constructive trust for either a public, religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or for both and registered under the Societies ....