TaxTMI 
TaxTMI 
2025 (5) TMI 1829
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....category of 'Commercial Construction Services'. * A Show Cause Notice SCN was issued against the assessee in C.No. V(15)Off/Adj./ST/143/2010/15983 dated 21.10.2020 for the period from 2005-06 to 2009-10 and in C.No. V(15)Off/Adj./ST/90/2011/16747 dated 18.10.2021 for the period from 2010-11 proposing demand of service tax of Rs.1,68,09,599/-. * An Order-in-Original dated 06.09.2012 was passed wherein the entire demand proposed in the SCNs was confirmed alongwith interest and imposition of penalty. * An appeal was filed by the assessee against such Order before this Tribunal, and vide Final Order No.70072/2018 dated 03.01.2018, the matter was remanded back for fresh adjudication. * Subsequently, the impugned Order-in-Original No. KNP-EXCUS- 000-COM-004-20-21 dated 26.05.2020 was passed by the Adjudicating Authority wherein the entire demand of Service Tax of Rs.1,68,09,599/- alongwith interest and penalty under Section 78 of Finance Act, 1994 raised in the SCN has been dropped based on two main contentions :- That the work executed by the Respondent assessee for Avas Vikas Parishad, UPRNN Ltd etc. pertains to construction of individual ho....
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....ntract. It is argued that since the construction was done under a composite contract pertaining to a building with more than 12 residential units, the Macro Marvel case relied upon is not applicable in the present case. It is further contended that since the assessee has entered into a composite contract of construction of houses for Avas Vikas Parishad, the decision of this Tribunal in the case of CCE, Allahabad Vs. Ganesh Yadav is not applicable. Further, the Revenue contends that an appeal was filed by the Department against the decision in the case of CCE, Allahabad Vs. Ganesh Yadav, which was later withdrawn in light of monetary limit, and hence, the ratio of such decision is not applicable herein. The Revenue further contends that the houses constructed under the scheme of 'Manyavar Kashiram Shahri Garib Avas Yojna' are not exempt under any notification. 3.3 The assessee in its cross objection has supported the reasoning laid down by the Adjudicating Authority and has once again placed reliance upon the decisions of this Tribunal in the cases of CCE, Allahabad Vs. Ganesh Yadav [2017 (6) G.S.T.L. 428] and NCR Builders Pvt. Ltd. Vs. Commissioner of C. EX. & S.T., Ghaziabad. ....
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....nts/evidences brought on record by the parties. We observe that the Revenue has failed to bring any evidence to prove its allegation that the construction services provided by assessee were with respect to a building or buildings, having more than twelve residential units. The entire contention of the Revenue seems to revolve around the fact that the assessee had entered into a composite contract with Avas Vikas Parishad for construction of houses. However, on a perusal of the above definitions, we fail to find any significance of such argument. The existence of a composite contract does not appear to have any bearing on the present case. The assessee in the present case entered into a contract with Avaas Vikas Parishad to construct individual houses under the scheme of 'Manyavar Kashiram Shahri Garib Avas Yojna' for low cost housing for economically weaker sections of society. We do not find any evidence of the construction being a building. with more than 12 units, or of any common area and/or facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premise. We observe that the Revenue in its pres....
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....o construction of residential complex under Manniya Shri Kanshi Ramji Shahri Garib Avas Yojna executed by U.P. Avas Evam Vikas Parishad. b. Certificate dated 30.06.2011 issued by executive engineer U.P. Avas Evam Vikas Parishad. In the said certificate the competent authority had certified that under this scheme homeless and poor persons were given houses free of cost and it was further clarified that the documents issued by UP Government Head Quarter clearly certified that in terms of Finance Bill, 1994, Section 65(91a), there is no levy of service tax in respect of specified residential complex, constructed by the respondent. c. Letter dated 18.06.2010, issued by Finance Controller, U.P. Avas Evam Vikas Parishad evidencing exemption from the levy of service tax in respect of the work executed by the respondent which interalia enclosed legal opinion by auditing firm M/s P. S. Bhargava & Company. d. Letter dated 18.06.2010 issued to Deputy Secretary, Aawas Evam Urban Development, UP Government, Lucknow with regards to non levy of service tax in respect of Manniya Shri Kanshi Ramji Shahri Garib Avas Yojna, that the same enjoys benefit of exemption from the....
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....ax would be applicable. The name of the scheme under which the houses are constructed is immaterial. 3.7 Also, we find that the issue at hand is no longer res integra and has been settled by this Tribunal in the case of CCE, Allahabad Vs. Ganesh Yadav [2017 (6) G.S.T.L. 428], wherein it was held that :- '5. We find that the issue in itself is incorrect. Larger Bench of this Tribunal in the case of Lanco Infratech Ltd. vs. CC, CE & ST - (2015) 38 STR 709 (Tri. - LB) = 2015-TIOL-768-CESTAT-BANG-LB has held that such activity which was not taxable prior to 01.06.2007 under the category of Commercial and Industrial Construction continue to be non taxable under the category of Works Contract Service from 01.04.2007. Further we find that under similar facts and circumstances, a co-ordinate Bench of this Tribunal in the case of CCE Vs. Manoj Kumar Singh Appeal No. ST/70135/2015 = 2016-TIOL-1979-CESTAT-ALL vide a stay order dated 19.05.2016 was pleased to reject the stay application filed by Revenue under the similar facts and circumstances where the respondent Manoj Kumar Singh had constructed civil structures, repairing, doing alteration, renovation or restoration of old stru....
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....me cannot be disregarded based on an Appeal filed against such judgement, unless and until the judgement is later stayed/overturned by a higher court. Since the Tribunal's decision has not been overturned by a higher court, it is a binding precedent that must be followed by the Revenue in similar facts and circumstances, like in the present case. 3.8 Further, we observe that a similar matter of construction by a assessee under 'Manyaver Kanshiramji Shahri Garib Awas Yojana' was taken into consideration by this Tribunal in the case of NCR Builders Pvt. Ltd. Vs. Commissioner Of C. EX. & S.T., Ghaziabad [2017 (3) G.S.T.L. 198 (Tri. - All.)], wherein it was held that :- '2. The brief facts of the case are that the appellant- assessee had constructed the flats for Saharanpur Development Authority (S.D.A.) under 'Manyaver Kanshiramji Shahri Garib Awas Yojana' for the Government of U.P. The Yojana was for the free allotment to the poor class of the society like the shelter less, handicapped, below poverty line persons, etc. The department opined that the construction of the residential house more than 12 units in a block is liable to be Service Tax on the basis of work contrac....
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.... No.80/10/2004-ST dated 17.09.2004 and the Tribunal's decision in the case of CCE & ST vs. Shri Kripa Shankar Yadav [Final Order No.72828/2018 dated 06.12.2018] to hold that the institutions being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for purposes of profit; like in the present case, are not taxable. 4.2 The Revenue in its Appeal contends that the judgement of Hon'ble Supreme Court in the case of M/s Msco. Pvt. Ltd. Vs. UOI is not applicable herein, as such judgement pertains to hospitals or dispensaries whereas the present case refers to educational institutions. It is further contended that the Adjudicating Authority has not properly examined whether the educational bodies under reference were set up with profit motive or not. Finally, it is contended that the Adjudicating Authority has allowed the exemption without a detailed examination in light of the need for strict interpretation of tax exemption statute. 4.3 The assessee in its cross objection has argued that the judgement of Hon'ble Supreme Court in the case of M/s Msco. Pvt. Ltd. Vs. UOI is squarely applicable herein, insomuch that it lays dow....
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....udies to be specified for the purpose of educational institute. e. Certificate of society and of educational trust issued by Kanpur Development Authority for Super House Education Foundation inter-alia including the Allen House Institute of Technology constructed by the appellant at Rooma, District Kanpur Nagar. f. Certificate dated 23.09.2010 issued by IIT Kanpur to similarly placed service provider certifying that with regard to construction of various units (Civil work) at IIT, Kanpur the legal section has informed that no service tax is leviable on the specified work of civil construction." 4.4 In light of the above mentioned documents brought on record by the assessee, we find it evident that the educational bodies under reference where charitable in nature and not for a profit motive. We do not find any merit in the Revenue's contention that the Adjudicating Authority has not properly examined whether the educational bodies under reference were set up with profit motive or not, only vague intention is made. We observe that the Adjudicating Authority has thoroughly perused the documents brought on record by assessee and arrived at a correct conclusion rega....
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....the Industrial Disputes Act, 1947 which is as wide as the legislature could have possibly made it. But that definition cannot be used for interpreting the word 'industry' in a notification granting exemption from customs duty under the Customs Act, 1962. A perusal of the provisions of the Constitutions shows that the expression 'industry' does not ordinarily posses such wide meaning. In Article 19 (6) (ii) the word 'industry' does not include 'trade', 'business' or 'service' which are specifically referred to therein. Then we have the expression 'industry' in Entires 7 and 52 of List I, Entry 24 of List II and Entry 33 of List III of the Seventh Schedule to the Constitution. The said expression in these entries does not include trade or commerce or distribution of goods which are found else where in the said Lists. What is of significance is that in List II 'hospitals and dispensaries' are specifically referred to in Entry 6 and they cannot, therefore, possibly fall under Entry 24 thereof which refers to 'industries'. As observed by this Court in Ch. Tika Ramji & Ors. v. The State of Uttar Pradesh & Ors. 'i....
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....e same. 4.6 Further, we find that even the definition of 'industry' provided in Section 2(j) of the Industrial Disputes Act, 1947 (as amended in 1982), excludes educational and charitable institutions from its ambit, as evidenced below :- Section 2(j) of the Industrial Dispute Act, 1947 defines „industry‟ as under- '[(j) 'industry' means any systematic activity carried on by the co-operation between an employer and his workmen (whether such workmen are employed by such employer directly or by through an agency, including a contractor) for the production, supply or distribution of goods or services with a view to satisfy human wants or wishes which are merely spiritual or religious in nature), whether or not:- i) any capital has been invested for the purposes of carrying on such activity; or ii) such activity is carried on with a motive to make any gain or profit, and includes- (a) any activity of the Dock labor Board established under section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948); (b) any activity relating to the promotion of sales or business or both carried on by an establishme....
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.... about this has to be gathered from the approved plan of the building or civil construction. Such constructions which are for the use of organizations or institutions being established solely for educational, religious, charitable, health, sanitation or philanthropic purposes and not for the purposes of profit are not taxable, being non-commercial in nature. Generally, government buildings or civil constructions are used for residential, office purposes or for providing civic amenities. Thus, normally government constructions would not be taxable. However, if such 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.' Allahabad Tribunals‟ decision in the case of CCE & ST vs. Shri Kripa Shankar Yadav [Final Order No.72828/2018 dated 06.12.2018] :- '2. On going through the facts on record we note that the respondent was registered with the Service Tax Department for providing taxable services covered under Works Contract Service. During the course of investigation, it was found that the appellant has rendered servic....