TMI Blog2023 (6) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... from 2005 to 2009 was also answered by the Notification No. 24/2009-S.T. dated 27.07.2009 which was issued under Section 93 of the Finance Act. The special provision for exemption in certain cases relating to Service Tax on repair of roads was made in Section 97 of the Finance Act, 2012. Notification No. 24/2009-S.T. states that the exemption has been extended even for the earlier period from 16.06.2005 to 26.07.2009 - the notification states that In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service, referred to in sub-clause (zzg) of clause (105) of section 65 of the Finance Act,1994, provided to any person by any other person in relation to management, maintenance or repair of roads, from the whole of the service tax leviable thereon under section 66 of the said Finance Act. The Mumbai Bench of the CESTAT in the case of COMMR. OF C. EX. CUS., AURANGABAD VERSUS RAJDEEP BUILDCON PVT. LTD. [ 2015 (12) TMI 326 - CESTAT MUMBAI] has held first appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand is raised in respect of site formation and clearance, excavation and earthmoving and demolition service on the basis of TDS Certificate issued by the Executive Engineer, SIDCO wherein it was mentioned that the assessee undertook filling-up of the low-lying area in eastern side of SIDCO Industrial Estate. The assessee s contention that the site formation service has been undertaken in connection with any laying or repair of road is not acceptable in the absence of any evidence. Even during the hearing before us, the appellant has never produced any evidence relating to the above activity. The finding of the lower authority upheld that the activity undertaken by the appellant squarely falls under the scope of site formation and clearance, excavation and earthmoving and demolition under Section 65(97a) of the Finance Act, 1994 and we hold that the assessee is liable to pay Service Tax of Rs.6,73,598/-, as confirmed by the learned Adjudicating Authority along with penalty under Section 78 of the Finance Act, 1994. The material facts were unearthed by the Department and hence, non-furnishing of any facts would clearly amount to suppression of acts with an intention to evad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A (TDS Certificates) has indicated that the appellant had carried out various maintenance and repair activities of roads for the Divisional Engineer, Chennai City Roads, Divisional Engineer, Highways, Thiruvallur, Executive Officer, Puzhal Town Panchayat, Thiruvallur and for improving the existing road falling under the jurisdiction of Commissioner, Panchayat Union, Puzhal, for a total value of Rs.5,06,43,499/- for the year 2008-09, as per the table given below: - Sl. No. Nature of work Work done for Total amt. paid (in Rs.) TDS on IT (in Rs.) TDS on VAT (in Rs.) Total amt. (in Rs.) 1 DE, Chennai City Roads 4331991 106529 94654 4533174 2 DE, Highways, Thiruvallur 29159177 666228 212615 30038020 3 EO, Puzhal Town Panchayat, 493367 91004 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax (in Rs.) 2005-06 MRS 28563734 25919904 10.20% 2643830 2006-07 MRS 33993495 30286435 12.24% 3707060 2007-08 MRS 48389888 43066828 12.36% 5323060 2008-09 MRS 67612911 60175250 12.36% 7437661 2008-09 SFC 6123418 5449820 12.36% 673598 Total 184683446 164898237 19785209 4.1 After due process of law, the Commissioner of Service Tax, Chennai vide Order-in-Original No. 88/2012 dated 26.07.2012 has confirmed the demand of Service Tax of Rs.1,07,04,221/- under proviso to Section 73(1) of the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCN (in Rs.) Exempted value (in Rs.) Gross taxable value (Cum-tax value) (in Rs.) Taxable value (in Rs.) ST Payable (in Rs.) 1 2005-06 28563734 28563734 25919904 2643830 2 2006-07 33993495 22160111 11833384 10542929 1290455 3 2007-08 48389888 48389888 43066828 5323060 4 2008-09 67612911 60583339 7029572 6256294 773278 5 2008-09 6123418 6123418 5449820 673598 Total 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be set aside. 5.4.1 Regarding the demand of Service Tax on site formation and clearance, excavation and earthmoving and demolition (SFC), it is contended that the appellant s activity of site formation is part of the repairs and maintenance activity of road and was required to be classified under maintenance or repair service and hence, the impugned order confirming the demand without looking into the purpose and significance of the main activity is unsustainable. 5.4.2 In support of this contention, reliance has been placed on the decision rendered by the Hon ble High Court of Punjab and Haryana in the case of Commissioner of Central Excise, Ludhiana v. Dr. Lal Path Lab (P) Ltd. [2007 (8) S.T.R. 337 (P H)] wherein it was held that when there is an exclusion provided in the provision in respect of a particular service, then merely because an incidental service is provided, it would not make such service taxable under another category of service. 6.1 Learned Authorized Representative Smt. K. Komathi (Addl. Commissioner) appearing for the Revenue has reiterated the findings of the Commissioner in the impugned order date 26.07.2012. She has contended that the service of ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nehru National Urban Renewal Mission or Rajiv Awaas Yojana; (c) a building owned by an entity registered under Section 12AA of the Income Tax Act, 1961 (43 of 1961) and meant predominantly for religious use by general public; (d) a pollution control or effluent treatment plant, except located as a part of a factory; or a structure meant for funeral, burial or cremation of deceased. 9.2 The question as to whether the above Notification would have a retrospective effect for the period from 2005 to 2009 was also answered by the Notification No. 24/2009-S.T. dated 27.07.2009 which was issued under Section 93 of the Finance Act. The special provision for exemption in certain cases relating to Service Tax on repair of roads was made in Section 97 of the Finance Act, 2012. Notification No. 24/2009-S.T. states that the exemption has been extended even for the earlier period from 16.06.2005 to 26.07.2009. The said Notification reads as under:- New Delhi, the 27th July, 2009. Notification No. 24/2009-Service Tax G.S.R. (E).- In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l pump and paid service tax on the same. Subsequently, they filed an application for refund on the grounds that they had paid it wrongly for the construction of road which is exclude from the category of Commercial and Industrial Construction as defined under clause (25b) of the Section 65 of the Finance Act, 1994. While allowing the said exclusion to them, the Hon ble CESTAT observed as follows : 7. After carefully considering the submissions made by both the sides we find that it is an admitted fact by both the sides that the construction of road does not require payment of service tax. The Revenue s only appeal is that construction of driveway cannot be equated with the construction of road inasmuch as such driveway was not for public utility purpose but the same was in connection with the petrol pump owned by the owner. In this connection we find that the Board s Circular No. B1/6/2005-TRU, dated 27-7-2005 is to the effect that - if the contract for construction of commercial complex is a single contract and the construction of road is not recognized as a separate activity as per the contract, then the service tax would be leviable on the gross amount charged for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essential character, in so far as this criterion is applicable; (c) when a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under the sub-clause which occurs first among the sub-clauses which equally merits consideration; (3) The provisions of this section shall not apply with effect from such date as the Central Government may, by notification, appoint. 10.2.1 Even if it is assumed that the hire charges on account of JCB and Tippers are separately accounted for in the financial statements of the appellant, the demand is not sustainable as the services were provided prior to the introduction of supply of tangible goods as a separate category under Section 65(105)(zzzzj). 10.2.2 We find that the above demand was raised in this appeal under maintenance or repair service as these were reportedly hired to those customers / service providers for repair / maintenance of the roads. However, the main service of these agreements / contracts is maintenance or repair service of roads, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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