TMI Blog2011 (5) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... t. P.K. Agarwal and R.K. Mahajan for the Respondent. ORDER P.G. Chacko, Judicial Member. In the stay application filed by M/s. Ashoka Infraways Private Limited (Appellant in Appeal No. ST/248/09), the prayer is to waive pre-deposit of service tax of Rs. 1,32,38,762 and equal amount of penalty and to stay recovery thereof. Similar application filed by M/s. VIVA Highways Private Ltd. (Appellant in Appeal No. ST/249/09) is for waiver of pre-deposit and stay of recovery in respect of service tax of Rs. 5,82,62,946 and equal amount of penalty. In both the cases, the Commissioner of Central Excise has demanded service tax from the assessees for the period from 16-6-2005 to 31-3-2008 and under the head " Management, Maintenance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the Fee Notification set forth in Schedule 'C' to the agreement. For the due and faithful performance of their obligation during the toll period, VIVA furnished a security of Rs. 120 lakhs Rs. 60 lakhs in the form of Demand Draft and the balance Rs. 60 lakhs in the form of Bank Guarantee - towards "Maintenance Security" . Under the above agreement, VIVA shall operate and maintain the Project Highway by itself or through O M Contractors. The maintenance works to be so undertaken included the following: (i) Undertaking routine maintenance including prompt repairs of potholes, cracks, concrete joints, drains, line marking, lighting and signage ; (ii) Undertaking major maintenance such as resurfacing of pavements, repairs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax from VIVA. It was on this basis that the show-cause notice demanded service tax of over Rs. 5.69 crores together with education cess totalling to over Rs. 5.82 crores from the assessee under the proviso to section 73(1) of the Finance Act, 1994. Interest on tax under section 75 of the Act was also demanded and penalty under section 78 of the Act was proposed to be imposed. Similar demand raised on M/s. Ashoka Infraways Private Limited also. 4. Ld. counsel for the appellants submitted that the projects undertaken by them were turnkey projects covered by works contract. It was submitted that their activities would, at best, be covered under "works contract" service which became a taxable service only with effect from 1-6-2007. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivities constituted a "works contract" which was not subject to service tax prior to 1-6-2007 and, further, that construction of roads stood excluded from all taxable services. The assessee relied on case law also. The tribunal found a prima facie case for them and, accordingly, granted waiver and stay. 5. In the case of Karnataka Land Army Corpn. Ltd. (supra), the said Corporation, being a State Government Undertaking, was engaged in the business of construction of roads, buildings etc. within Bangalore city. They undertook the work for Government agencies. According to the Revenue, the Corporation was rendering services of "maintenance or repair" of immovable properties. The assessee claimed the benefit of Notification No. 17/2005, date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellants maintained the bona fide belief that they were not liable to pay service tax on any maintenance or repair of roads in connection with execution of the works contract in question. 8. The ld.counsel has also questioned the rationale behind quantification of the demand of service tax. He submitted that, under the Service Tax Rules, a provider of taxable service was liable to raise an invoice on the service recipient and that the taxable value for levy of service tax required to be determined on the basis of such invoice. In the present cases, the appellants were not required to raise any invoice on NIGAM under the relevant contracts. According to the ld.counsel, the determination of taxable value in these cases by deductin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t " while construction of road is not a taxable service, "management, maintenance or repair" of roads are in the nature of taxable services, attracting service tax." The Jt.JCDR has also taken us through certain provisions of "Concession Agreement" and has also explained the manner in which the money transactions under the agreement were undertaken. 10. After considering the submissions, we are not impressed with the submissions made on behalf of the Revenue at this stage. Prima facie, the appellants are entitled to the benefit of the stay orders cited by the ld.counsel. Some of these orders were based on similar set of facts. The ld.JCDR has not claimed that those stay orders cited by the ld.counsel were successfully challenged by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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