Custom, Excise & Service Tax Tribunal
M/S A.B. Projects Pvt. Ltd vs Commissioner Of Central Excise, Nagpur on 8 December, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. ST/38/09 (Arising out of Order-in-Appeal No. SN/108/NGP/2008 dated 25.11.2008 passed by the Commissioner of Central Excise & Customs (Appeals), Nagpur). For approval and signature: Honble Shri Ashok Jindal, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? ====================================================== M/s A.B. Projects Pvt. Ltd. Appellants Vs. Commissioner of Central Excise, Nagpur Respondent Appearance: None (Written submission) for Appellant Shri B.P. Pareira JDR for Respondent CORAM: SHRI ASHOK JINDAL, MEMBER (JUDICIAL) Date of Hearing: 08.12.2009 Date of Decision: 08.12.2009 ORDER NO. WZB/MUM/2009 Per: Shri Ashok Jindal, Member (Judicial)
By this appeal, the appellants are seeking a refund claim pertaining to the service rendered by them during the period August, 06 to October, 06 on the ground that the Service provided by them for construction of godowns with ancillaries, roads, electrical installation for Central Warehousing Corporation are not covered under the Service Tax because the Railway has been excluded from the scope of commercial and industrial construction services.
2. The brief facts of the case are that the appellants are Private Limited Company and provided services under the category of Commercial & Industrial Construction Services & Construction for Residential Complexes Services. The appellants were awarded a contract for construction of 17000 MTC godowns with ancillaries, roads and electrical installations at Rail Side Warehousing Complex by Central Warehousing Corporation. A service tax audit was conducted by the departmental officers and it was pointed out that construction of warehouse at Railway yard falls under the category of Commercial and Industrial construction services as defined under Section 65 (25b) of the Finance Act, 1994 and asked the appellant to make a payment of service tax to the tune of Rs.4,60,403/-. Later on, the appellants filed a refund claim and the same rejected by the lower authorities. Aggrieved from the same the appellant is before me.
3. Today the matter was fixed for final hearing but the appellant vide their letter dated 9.11.2009 intimated this Tribunal to decide the matter on merits as the appellants are unable to depute a Counsel to appear before this Tribunal. Accordingly, the submissions in appeal memo filed by the appellants are considered and DR was also heard.
4. The main issue before me in the case is as to whether the warehousing complexes constructed by the appellants on Railway side against the award of contract by the Central Warehousing Corporation, an undertaking of Government of India, the appellants are covered in the category of Commercial and Industrial Construction Services or not. According to the Board Circular No. 80/10/2004-ST dated 17.9.2004, building civil structure or parts thereof which are used, occupied or engaged for the purpose of commerce and industry are covered by levy of service tax. According to above clarification, construction of warehousing complex, warehouses, cold storage, markets, bazaars etc. are covered under commercial and industrial construction services and contractors executing such work, either for Govt. Semi Govt. or local bodies are liable to pay service tax on such construction. It was further clarified that such construction which are for 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.
5. Heard.
6. From the above submissions made by DR, it is clear that the commercial construction done on behalf of the Government, which in returns for letting out purposes and Government earns revenue from them are covered under Commercial & Industrial Building Construction services. With these observations, I do not find any merit in the appeal filed by the appellant and the same is rejected.
(Dictated and pronounced in Court) (Ashok Jindal) Member (Judicial) Vks/ 4