TaxTMI 
TaxTMI 
2026 (2) TMI 783
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in respect of taxable services provided to the government, a local authority or a governmental authority by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession. 2. Pursuant to the said provision, the appellant filed a refund claim of service tax amounting to Rs.1,58,03,017/- on 11.11.2016 for service tax paid on construction of multilevel parking at Nayi Sadak, Jodhpur, underground parking at Gandhi Maidan, Jodhpur and Hathiwala Park at Udaipur and Eklavya Model Residkential School, Rajgarh, Alwar claiming the exemption under serial no. 12(a) of Notification No. 25/2012-ST dated 20.06.2012 as amended vide Notification No. 09/2016-ST dated 01.03.2016 read with Section 102 of the Finance Act, 2016. However, department observed that the requisite documentary evidences were not provided by the appellant nor any evidence was provided vis-à-vis eligibility towards exemption Notification No. 25/2012. Accordingly, vide Show Cause Notice No. 18/151/2016 dat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....learned counsel has prayed for the impugned order to be set aside and the appeal to be allowed. Learned counsel has relied upon the decision of this Tribunal in the case of Commissioner of C. Ex. & S.T., Lucknow Vs. Shalimar Corp. Ltd. reported as (2019) 24 GSTL 254 ( CESTAT, Allahabad). 5. While rebutting these submissions, learned Departmental Representative has reiterated the finding arrived at in the impugned order. Specific emphasis to the following has been laid: (i) The construction services for parking projects are meant for the local bodies to charge hefty amount from the contractors, who is turn charge high parking fees from the general public. Hence it is rightly considered as an activity in the nature of commerce and industry. Thus the refund claim of Rs.1,27,74,972/- is rightly rejected on this ground. (ii) The work of Eklavya Model Residential School which is an educational institute was awarded by Tribal Area Development Department of Government of Rajasthan and is covered under Notification No. 25/2012 as amended and hence refund claim of Rs.30,28,045/- is not liable to be rejected on this ground. 5.1 It is further submitted that refund claim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....allation, completion, fitting out, repair, maintenance, renovation, or alteration of - (a) a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (b) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) an art or cultural establishment; or (c) a residential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause (44) of section 65 B of the said Act; under a contract which had been entered into prior to the 1st March, 2015 and on which appropriate stamp duty, where applicable, had been paid prior to such date: provided that nothing contained in this entry shall apply on or after the 1st April, 2020;" 8.1 We have also perused Section 102 of the Finance Act, 1994 as got inserted by Finance Act, 2016. It was the special provision for retrospective exemption in certain cases relating to construction of government buildings. The provision reads as follows: (2) Special provision for retrospective exemption in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hallenge has rejected the refund claim for the service tax paid by the appellant during the period 01.04.2015 to 29.02.2016 on the ground of holding the construction of parking by the appellant to be a construction done for commerce and it has been rejected vis-à-vis construction of school for want of invoices and other requisite documents. 8.3 To appreciate the correctness of the said adjudication, we have foremost perused the facts. The admitted facts on record are: (i) Both the activities are initiative of Government of Rajasthan. (ii) The appellant was awarded civil construction contracts by the Government of Rajasthan (Directorate of Local Bodies) for the following works: S. No . Name of Contract Date of Agreement Awarded by Date of Commencement/completion 1. Multilevel parking at Nayi Sadak, Jodhpur Original Sanction : 5th Sep' 2013 Revised Sanction : 1st Feb' 2016 Director Local Bodies (DLB), Government of Rajasthan 1st Nov' 2013 (suspended) 2. Underground parking at Gandhi maidan, Jodhpur Sanction : 5th Sep' 2013 Director Local Bodies (DLB), Government of Rajasthan 20th Jan' 2014 3. Hathiwala Par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on): The term 'commercial' is defined as traffic, trade or merchandize in buying and selling of goods. In Ramanatha Iyers's Advanced Law Lexicon (3rd edition): The word, Commercial Purpose' is defined as: Word has a vide connotation, in determining commercial purpose, scale of business, the investment involved, motive and intention behind the business, whether in the nature of earning a livelihood or earning substantial profits, currently as well as in future should be taken in to consideration. Further in R.M. Investment and Trading Co. Pvt. Ltd. v. Boeing Co. and Another, (1994) 4 SCC 541, while dealing with the expression "commercial" it has been opined that the expression "commercial" should be construed broadly having regard to the manifold activities which are integral part of international trade today. 8.5 Thus, the above interpretation clearly amplifies that an activity is said to be commercial in nature, if it is carried on as a business to earn profit. Profit motive is essential in determining the transaction for commerce or industry. Whether the activity actually results in profit or loss is immaterial but what is necessar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onstructing parking lots for the reason that the requisite documents/invoices has not been submitted and that incidence of tax has been passed on by the appellant. However, held that the refund claim vis-à-vis construction for Eklavya Model Residential School, is not liable to be rejected being covered under Notification No.25/2012. It is observed that the refund claim has been filed under Section 102 of the Finance Act incorporated in terms of Section 159 of the Finance Act, 2016. The said section has considered Section 102 as the special provision for exemption in certain cases relating to construction of governmental buildings. The objective of this section is to extend service tax exemption retrospectively for the services specified therein. The CBEC vide Circular No. 334/8/2016 dated 29.02.2016 has clarified that the relevant services provided to the government during the period under the contracts entered into prior 01.03.2015 shall remain exempted from service tax. Section 102(2) (as reproduced above) has used word 'shall" making it mandatory for the department to refund such service tax which has been collected but which would not have been so collected as the exempt....