TMI Blog2009 (3) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the appellant rendered construction service to M/s. HPCL, Visakhapatnam and management, maintenance or repair service to various clients like R B department of Andhra Pradesh State Government, APIIC and other clients. 2. During the course of investigation, the appellant agreed with his liability to service tax on the commercial construction carried out and paid an amount of Rs. 9,20,046/- in two tranches towards service tax. The appellant has not agreed with the view of the department that the activity carried out by him in respect of roads fall under management, maintenance or repair of immovable property but contended that the same fall under commercial or industrial construction service as evidenced by the letters issued by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l; 5. Levelling off the placed material by a grader and compacting to a required density using a road roller; 6. Importing of the next layer a sub-base (higher quality than the selected sub-grade) - which is usually a gravel type material having higher California Bearing Ratio (CBR); 7. Working the material of the sub-base by a grader and simultaneously mixing with water to aid compaction; 8. Importing of the final layer, the base course consisting of gravel or crushed stone; 9. Levelling and compacting of the base course; and 10. Placing of a surface course on the top of the base course, consisting of asphalt concrete or a seal consisting of a mixture of similar sized small stones, bitumen and Portland cement. Based on the above process ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctivities carried out by them in respect of roads. The adjudicating authority has confirmed the demand on the sole ground that the appellant has not carried out the processes of 1. Stripping of the top soil within the road reserve; 2. Removal of in-situ ground using a heavy motorized grader to a specified level (Road-bed level): 3. Compacting the road-bed level using a heavy vibratory road roller (to the required density) after which the pavement layers can be imported: 4. Importing of the first pavement layer a selected sub-grade (SSG) - which is usually a gravel type material; 5. Levelling off the placed material by a grader and compacting to a required density using a road roller; 6. Importing of the next layer a sub-base (higher quali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or similar services in relation to, building or civil structure, pipeline or conduit, which is (i) used, or to be used, primarily for; or (ii) occupied, or to be occupied, primarily with; or (iii) engaged, or to be engaged, primarily in, commerce or industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams; 9. As seen from the above definition the activity covers construction, completion and finishing and repair, alteration, renovation or restoration or similar services and the definition itself specifically excludes such services provided in respect of roads, airports, railways, transport terminal, brid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/6/2005-TRU, dated 27-7-2005 which is reproduced below fortifies my above view. 16.2: Prior to 16-6-2005, such services covered maintenance or repair or servicing of any goods or equipment, excluding motor vehicles. However, since 16-6-2005, services relating to maintenance or management of Immovable property (such as roads, airports, railways, buildings, parks, electrical installations and the like) have also been covered under the purview of service tax. Such services would be taxable when provided under a contract or an agreement by any person or by a manufacturer or any person authorized by a manufacturer. The words maintenance or management are only finding place and the word repair is conspicuously absent. 11. In para 21 of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid the tax in two tranches on 11-8-2006 and 10-10-2006 and the notice is issued on 17-1-2007. This shows that the appellant has paid the tax amount as soon as he came to know about his tax liability. The contention of the appellant that non-payment of tax is due to bona fide error is acceptable. In accordance with the provisions of Section 80 of the Finance Act, 1994, the appellant is not liable for penalties under Sections 76, 77 and 78 of the Finance Act, 1994. 12. Keeping in view the above discussions. I pass the following order. ORDER 1. The appellant is not liable for tax on the activity of repairs carried out on roads. Consequently, the demands confirmed under paras III IV of the order under challenge are set aside. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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