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2022 (9) TMI 853 - AT - Service TaxExemption from service tax provided to DMRC - Railways - composite contacts - works contract service - erection, commissioning and installation service - supply of tangible goods service - execution of contracts for laying of water pipelines - doctrine of noscitur a sociis and of ejusdem generis - relied upon documents - rectification of mistake apparent in the record under section 35C of Central Excise Act, 1944, as made applicable to Finance Act, 1994 - HELD THAT:- It is found that the allegations against the respondent herein for fastening the tax liability rests upon the allegation that ‘erection commissioning or installation service’ has been rendered. The said service was, along with others, included within the scope of ‘work contract service’ upon incorporation in Section 65 (105) of Finance Act, 1994 with effect from 1st June 2007 and it has been held by the Hon’ble Supreme Court in M/s Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] that the distinction between the separate enumerations and the composite enumeration within ‘works contract service’ lies on the absence of supply of material insofar as the former is concerned. It is seen from the sample contracts that respondent herein was also responsible for supply of material on which tax has been claimed to have been discharged; in the absence of any controverting of this submission, or contrary evidence, the ‘taxable service’ within which the respondent was sought to be fitted would not apply. On examination of fitment within the claimed enumeration of ‘works contract service’, it is found that the respondent was involved in the shifting of the existing water pipelines belonging to Delhi Jal Board which, by implication, ultimately is rendering of services to that agency which the grounds of appeal admits to being eligible for exclusion from tax. In terms of the decision of the Hon’ble High Court of Madras in M/s Indian Hume Pipes Co Ltd, [2015 (9) TMI 479 - MADRAS HIGH COURT] the laying of pipelines as an adjunct of civil structure would alone bring the activity within the ambit of section 65 (105) (zzd) of Finance Act, 1994 and from the nature of the work undertaken, it is apparent that the activity contracted out by the respondent does not relate to civil work for facilitating the network of Delhi Metro Rail Corporation. The exclusion of the alleged ‘taxable service’ sought to be fastened on them from any contract other than service simpliciter erases the distinction of commercial outcome suggested by the reviewing authority. In any case, even if Delhi Metro Rail Corporation were to be the final recipient of the service rendered by the respondent, the decision of the Hon’ble High Court of Calcutta in M/s Afcons Infrastructure Ltd. categorising them as ‘railway’ forecloses taxability even if the dispute pertains to laying of water pipelines. Appeal dismissed.
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