TMI Blog2013 (7) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... , the runway can be constructed as a road or as a species of a road - in the case of runways public access is prohibited and it is only meant for landing or taking off of the aircrafts - thus runway cannot be considered as a road. The specific exemption for maintenance or repair of roads by the legislature retrospectively clearly shows that the said activity is a taxable activity and, therefore, in public interest the same has been given exemption. If the activity was not taxable ab initio, there was no need for the legislature to pass a specific legislation for this purpose. This also shows that the reliance placed by the appellant on the various case laws in this regard does not support the contentions raised by the appellant. As regards the claim of the appellant that in respect of runways constructed in defence airports, the benefit of retrospective exemption under section 98 of the Finance Act, 2012 would be available, this aspect needs consideration by the adjudicating authority as this issue had not been raised or considered by the said authority. - ST/26/2012 - A/1264/13/CSTB/C-I - Dated:- 29-5-2013 - Shri P.R.Chandrasekharan And Anil Choudhary, JJ. For th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 1994 and vide section 97 of the Finance Act, 2012 this exemption has been given retrospective effect for the period from 16/06/2005 to 26/07/209. In view of the above, the appellant is not liable to pay any service tax on the activities undertaken by them in respect of management, maintenance or repair of roads. According to the counsel the demand towards these services comes to approximately Rs.7 crores. However, he submits that when the impugned order was passed, the retrospective amendment had not come into force and, therefore, the matter needs to be remanded back to the adjudicating authority for extending this exemption and re-computation of demand. 3.1 As regards the maintenance, repair of runways undertaken by the appellant, it is his submission that the expression road' includes runways as per the K.J.Aiyer's Judicial Dictionary published by Butterworths India, 13 th Edition, which reads as follows: Road. A way of passage. The expression is wide enough to include railway, railroad or railway track because road is genus and railway is a species of road [Union of India vs. Authority under Minimum Wages Act SIR 1969 Bom 310, 70 Bom LR 548, 1968 Mah LJ 771, 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... runways, part of the construction was relating to defence airports and airport' by definition has the meaning assigned to it in clause (b) of Section 2 of the Airport Authority of India Act, 1994, and as per these provisions airport' means landing and taking off area for aircrafts, usually with runways and aircraft maintenance and passenger facilities and includes aerodrome as the defined in clause (2) of Section 2 of the Aircraft Act, 1934. Vide Section 98 of the Finance Act, 2012 retrospective exemption has been granted relating to management, maintenance or repair of non-commercial government building, for the period from 16/06/2005 to 30/06/2012. Since defence airports are non-commercial government buildings, there will not be any service tax liability on the activities undertaken by the appellant in respect of repair of runways of defence airports. 3.2 It is his further contention that no abatement has been granted in respect of the materials used for the repair or re-surfacing of runways under Notification no. 12/2003 and its successor notifications. If all these are considered, the duty liability would come substantially. 3.3 It is also his contention that the entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the absence of any such access to any public for transportation. In the absence of any such access to any public in the case of runways, they cannot be considered as roads. He also relies on the decision of the hon'ble High Court of Madras in the case of Chairman, Neyveli Lignite vs. Nayathan and Ors. 2(1988)ACC 141 wherein it was held that road is a highway to which the public has access and includes bridges over which a road passes. It is his contention that public access is a must for something to be considered as a road. Since in the case of runways, public access is prohibited, runways cannot be considered as roads. Therefore, the benefit of exemption available to maintenance/repair of roads will not be available in respect of such activities carried out in respect of runways. 5. We have carefully considered submissions made by both the sides. 5.1 In the present case the appellant has undertaken maintenance/repair of roads in addition to repair/maintenance of runways. Vide Notification no. 24/2009, maintenance/repair of roads was exempted from the levy of service and such exemption was given retrospective effect vide section 75 of the Finance Act, 2012 for the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile road is defined as a tract suitable for road traffic, a highway, a roadway etc. runway is defined as a firm strip of ground for aircraft to take off from land and land on. Therefore, in common understanding, road and runways are not one and the same. They are distinct and different. In view of the above, we negative the contentions raised by the counsel for the appellant stating that maintenance or repair of road would include maintenance or repair of runways. In the absence of a specific exemption in respect maintenance or repair of runways, the benefit of service tax exemption available in respect of roads cannot be extended to runways and we hold accordingly. 5.3 The learned counsel has also argued that since Commercial or Industrial Construction Service' includes repair, alteration, renovation or restoration or similar services in relation to a building or civil structure but excludes such services provided in respect of roads, airports, railways etc. the said activity cannot be brought under tax net under management, maintenance or repair services and he relies on the decision of the Tribunal in the case of Dr. Lal Path Lab Pvt. Ltd. vs. Commissioner of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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