TMI Blog2020 (3) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... hors the operative provisions of such statutes. The constructions excluded from taxability under both the entries in section 65(105) of Finance Act, 1994 are, plainly, unqualified. The legislative intent, therefore, cannot be circumscribed by encroachment, or restrictive interpretation, ventured upon by tax authority. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No: 85136 of 2016 - A/85482/2020 - Dated:- 5-3-2020 - HON BLE MR C J MATHEW, MEMBER (TECHNICAL) AND HON BLE DR SUVENDU KUMAR PATI, MEMBER (JUDICIAL) Shri Bharat Raichandani, Advocate for the appellant Shri OM Shivadikar, Assistant Commissioner (AR) for the respondent ORDER PER: C J MATHEW The grievance of M/s NMC Industries (P) Ltd against order-in-original no. 38/Pr. Commr/ST-II/PK/2015-16 dated 19th August 2015 of Commissioner of Service Tax, Mumbai-II, which has confirmed recovery of service tax amounting to ₹ 53,67,337/- under section 73 of Finance Act, 1994, along with interest thereon under section 75 of Finance Act, 1994, besides imposing penalty of like amount under section 78 of Finance Act, 1994, is the non-consideration of their claim of exclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd leg of the elaboration of works contract from identical entries in section 65(105) that existed prior to incorporation of tax on works contract service to restrict the taxability under the earlier provisions to services simpliciter. It is difficult to conceive of the impugned projects having been rendered sans materials and, thereby, failure to evaluate for coverage under works contract is a glaring charm that lies unbridged. While the adjudicating authority may not have had the benefit of the judicial wisdom articulated in re Larsen Toubro, the blindsided approach to classification of the service sought to be taxed under section 65(105)(zzzza) of Finance Act, 1994 may not deserve tolerated discard. A careful and balanced perusal of the taxing entry would make it apparent, from the applicability of the Explanation therein restricted to the sub-clause , that works contract , envisaged for levy of service tax does not constitute the whole of that which is taxable, as deemed sale , by states empowered under List II of Seventh Schedule to the Constitution of India. Tax paid, or contracted to be paid, is no basis for identifying the deemed sale enumerated in Article 366 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not available in respect of Monorail projects. 4.1 In para 3.4 of the impugned order, the adjudicating authority has noted that DMRC is a company formed under the Company s Act, 1956 and declared mission to operate on sound commercial lines obviating the need for government support, which indicates that DMRC is a commercial organization and, therefore, the construction service provided in respect of DMRC undoubtedly falls within the scope of Construction of Civil Structure provided to a person primarily in Commerce and is also used for commerce. 4.2 He also refers to para 3.13 wherein reference has been made to Section 66D(o) of the Finance Act, 1994 effective from 1-7-2012 where in respect of service of transportation of passengers by railways, distinction has been made among Metro, Monorail or Tramway which also would indicate that Monorail and Tramways are different from railways as commonly understood. xxxxxx 5.1 The definition of Commercial and Industrial Construction Service as provided in Section 65(25b) excludes such activities relating to roads, ports, railways, dams, bridges, tunnels etc. There is no distinction between a monorail or metro rail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned for their use, the benefit of exclusion clause provided in the definition under [Section] 65(25)(b) of the Act should be available, for non-levy of Service Tax. Since there is no ambiguity in plain reading of the definition and in view of the admitted fact that the appellant had constructed roads for different commercial entities/ organization, the benefit of the exclusion provided in the definition clause should be available to it. to reinforce the submission. 6. Learned Authorised Representative urged us to endorse the proposition of the adjudicating authority that the exclusions were intended to ensure that the said tax was levied from all commercially oriented construction apparent in the description of the taxable service. 7. We cannot concur with the Learned Authorised Representative as the conclusion of the adjudicating authority lacks legal soundness. We are unable to comprehend the resort to Railways Act, 1989 for a broader understanding of expression railways in the absence of permissible referral in section 65(105)(zzzza) or (zzp), or, for that matter, anywhere in section 65, of Finance Act, 1994. In the absence of such authority, it is the common p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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