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M.P. Audhyogik Kendra Vikas Nigam, Bhopal Versus The Chief Commissioner of Customs Central Excise And Service Tax & Others

2015 (10) TMI 366 - MADHYA PRADESH HIGH COURT

Demand for Service Tax – Service of Management, Maintenance or repairs of roads provided is totally exempted - Notification issued by the competent authority and vide amendment to the Finance Act, 2012 indicates the service is exempted from payment of tax – Department holds that the service so provided falls within the definition of service provided as given under Section 65(64) of the Finance Act – Held That:- Imposition of tax is wholly unsustainable and impermissible under law – Service menti .....

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arned counsel ORDER The petitioner has filed this writ petition under Article 226 of the Constitution of India challenging the assessment order dated 13.5.2014 Annexure-P/1 and the consequential demand raised vide Annexure- P/14 and Annexure-P/18 by the Commissioner, Custom, Central Excise and Service Tax, Bhopal in the matter of demanding service tax from the petitioner for the service of Management, Maintenance or repairs of roads provided by the petitioner. It is the case of the petitioner th .....

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and maintenance of various roads and in the process of carrying out their business activities they were paid the amount as per the agreement towards the maintenance and repairs of roads undertaken pertaining to various contracts. Assessment process were conducted against the petitioner by the Revenue in accordance to the Provision of the Service Tax and the Revenue issued notice to the petitioner, inter alia contending that the service of Management, Maintenance or repairs of roads falls within .....

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y the petitioner was defined in the manner as indicated herein above, this service was exempted from payment of tax, a notification was issued by the competent authority and vide amendment to the Finance Act, 2012 inserted w.e.f. 28.05.2012 Section 97(1) was incorporated in the Finance Act, which reads as under:- 97. (1) Notwithstanding anything contained in Section 66, no service tax shall be levied or collected in respect of management, maintenance or repair of roads, during the period on and .....

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mphasis supplied) 3. According to learned counsel for the petitioner by virtue of this notification an amendment to the statue the service as provided by the petitioner i.e. Management, Maintenance or repairs of roads was totally exempted from payment of service tax between 16.06.2005 to 25.07.2009 and thereafter another notification bearing notification No.24/2009 dated 27.07.2009 was issued wherein in exercise of powers conferred under Sub-section (1) of Section 93 of the Finance Act. The enti .....

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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) 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. (emphasis supplied) 4. Based on the aforesaid, a case is canvassed before .....

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atutory remedy by way appeal to the appellate authority and further to the appellate Tribunal is available, this petition is not maintainable. However, on merit the respondents again refer to the definition of Management, Maintenance or repairs of roads as contained in Section 65(64) of the Finance Act, 2006 and says that as the service in question is taxable in accordance with the aforesaid provision, no error has been committed by the department. 5. However, respondents in the return do not de .....

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his normal rule and this Court can interfere, if the imposition of duty is perse unsustainable and illegal. That being so, we propose to examine the merit of the matter and considered the objection with regard to maintainability of the petition thereafter. Admittedly as per the provision of Section 65(64) the work of Management, Maintenance or repairs of roads is a service which was initially held liable for payment of service tax, however, after having so notified the Central Government amended .....

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ification the entire service in question i.e. Management, Maintenance or repairs of road was exempted from payment of service tax. It is, therefore, clear from a conjoint reading of this notification and the amendment brought into force in the Finance Act, 2012, that initially on 27.07.2009 the competent authority granted exemption from payment of duties between 06.06.2005 to 26.07.2009 after this notification was issued granting exemption from payment of duties upto 26.07.2009 it was thought ap .....

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