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M/s. D.P. Jain and Company Infrastructure Pvt. Ltd. Versus Union of India, The Commissioner of Central Excise, Customs and Service Tax

2016 (7) TMI 784 - BOMBAY HIGH COURT

Demand of service tax - (i) repair and maintenance of roads; (ii) repair and maintenance of airport runways; (iii) site formation activity undertaken at roads. - period from 2005-06 to 2009-10. - It was submitted that, commercial or industrial construction service was introduced as taxable service under the head “construction service” with effect from 10th September, 2004. The same service was renamed as “commercial or industrial construction service” with effect from 16th June, 2005. Though it .....

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licy holder by an insurer, by an advertising agency, by a courier agency etc. and when it came to service in relation to management, maintenance or repair, the legislature was free to tax it. Merely because repairs of roads and airports is specifically excluded from the definition of “commercial or industrial construction” it could still be brought in under the category of “management, maintenance or repair service”. Ultimately, management, maintenance or repair is defined to mean any service pr .....

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be a distinct service and that aspect is excluded from the definition of the term “commercial or industrial construction service”, then, it is not a case of redundancy or rendering any provision nugatory, but being specific and clear. Once the matter is understood in this manner, then, the submission of Mr. Sridharan, based on the judgment of the Hon'ble Supreme Court of India in the case of Tahsildar Singh (supra) cannot be accepted. - Mr. Sridharan forgets that we are not construing as to .....

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e so included, whether those are contemplated by section 98. Section 98 refers to building services relating to management etc. of non commercial Government buildings. We are not construing the ambit and scope of such services. We are concerned with the excision from the definition of this service the maintenance of road, repair to runway etc. That exclusion is clear. - As a result of the above discussion, we do not find any merit in the appeal. Once the order impugned in the writ petition i .....

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Appeal No. 51 of 2014 - Dated:- 18-7-2016 - S. C. Dharmadhikari And G. S. Kulkarni, JJ. For the Petitioner : Mr. V. Sridharan - Senior Advocate with Mr. Prakash Shah and Mr. Jas Sanghavi i/b. M/s. PDS Legal For the Respondents : Mr. Pradeep S. Jetly with Mr. Jitendra B Mishra JUDGMENT ( Per S. C. Dharmadhikari, J. ) 1. On the above writ petition, we had granted Rule on 22nd February, 2016 and directed that it be heard along with Central Excise Appeal No. 21 of 2015. 2. Rule on interim relief in .....

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956, having registered office at the address mentioned in the cause title. The first respondent is Union of India and the second respondent is the Commissioner of Central Excise, Customs and Service Tax, Nagpur. The petitioner is holding Service Tax Registration No. AACCD1376KST001 under the categories of Transportation of Goods by Roads and Site Formation and Clearance, Excavation and Earth Moving and Demolition Service 5. The petitioner is inter alia engaged in the business of:- (i) Constructi .....

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of roads; (ii) repair and maintenance of airport runways; (iii) site formation activity undertaken at roads. The dispute in the present case pertains to period from 2005-06 to 2009-10. 7. In the month of July, 2010, investigations were conducted by the officers of Service Tax Cell of Central Excise Headquarters, Nagpur, in connection with the alleged non-payment of service tax on the services rendered by the petitioners. 8. Following correspondences were exchanged between the department and the .....

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e notice dated 14th October, 2010 was issued to the petitioner, calling upon it to show cause as to why service rendered by it should not be classified under the categories of (a) Management, Maintenance or Repair; (b) Commercial and Industrial Construction Service and (c) site formation and excavation clearance service. 10. Further, the petitioner had to show cause as to why service tax amounting to ₹ 10,25,72,125/- should not be demanded from it under the provisions of section 73(1) of t .....

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ion service as defined in clause (25b) of section 65 of the Act and such services when rendered in respect of roads and airports were excluded from the levy of service tax and therefore, the same could not be levied under the category of management, maintenance and repair service. (ii) Amongst the various activities covered by the show cause notice were services of excavation and earth work carried out in respect of roads, which were totally exempt from service tax by Notification No. 17 of 2005 .....

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e Act could not be invoked because the Department itself was in doubt about the taxability of the various activities in relation to road as was apparent from the Board's circular which was issued on a representation made by the Nasik Commissionerate and because the details of receipts made in respect of the services provided were reflected in the balance sheet of the petitioner's company which was a public document. (vii) Penalties under sections 76 and 78 of the Act could not be simulta .....

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,72,125/- under section 78 of the Act. 13. While denying the benefit of exemption under Notification No. 17/2005-Service Tax on the services, excavation and earth work, respondent no. 2 observed that the exemption was applicable only to site formation performed during the course of construction of road and not to the service rendered at a very far of place for quarrying metal, etc. He further observes that the exemption is applicable only if the activity was undertaken in the course of construct .....

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etitioner filed Appeal No. ST/26/2012 (along with Stay Application No. ST/Stay/125/2012) before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) on several grounds. 16. Meanwhile, Finance Act, 2012 was enacted and, thereby, sections 97 and 98 have been inserted. Section 97 provide for retrospective exemption to activity of management, maintenance or repair of road with effect from 16th June, 2005. Similarly section 98 provides for retrospective exemption to activity of management, .....

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the 26th day of July, 2009 (both days inclusive) ..... SECTION 98. Special provision for exemption in certain cases relating to management, etc., of non- commercial Government buildings. - (1) Notwithstanding anything contained in section 66, no service tax shall be levied or collected in respect of management, maintenance or repair of non- commercial Government buildings, during the period on and from the 16th day of June, 2005 till the date on which section 66B comes into force ….. 18. .....

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by the Appellate Tribunal, the petitioner filed an appeal before this court. This court, vide order dated 29th November, 2012 quashed and set aside the stay order and directed the appellate tribunal to hear the appeal on its own merits without any requirement of pre-deposit. 21. Thereafter, the appellate tribunal heard the appeal on merits and passed Final Order No. A/1264/13/CSTB/C-I dated 29th May, 2013. In this order, the appellate tribunal held that section 97 and section 98 of the finance .....

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, 2012. The appellate tribunal noted that maintenance or repair of roads was retrospectively exempted from the levy of service tax from 16th June, 2005 onwards and hence the petitioners are rightly eligible for exemption from service tax on the repair and maintenance of roads undertaken by them during the period from 16th June, 2005 to March, 2010. 23. However, the appellate tribunal held that runways cannot be said to be covered under the term road and hence the exemption extended to repair or .....

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epair service defined in section 65(64) of the Finance Act. 25. Aggrieved by that part of the order dated 29th May, 2013 passed by the appellate tribunal, as explained in paragraphs 23 and 24 above, the petitioners preferred an appeal, namely, central Excise Appeal No. 51 of 2014 before this court. 26. The aforesaid appeal came up for admission before this court on 13th February, 2015 and this court admitted the appeal on the following substantial questions of law:- (a) Whether in the facts and .....

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ommercial or industrial construction service ? 27. A memorandum vide F. No. IV (16) 30-192/ST/Adj./ 2010/ 6195-6196 dated 2nd May, 2014 was issued by the Superintendent to the petitioner to submit written submissions and appear for personal hearing. The petitioner, vide letter dated 20th May, 2014, informed respondent no. 2 that the appeal filed by the petitioner against the appellate tribunal s order dated 29th May, 2013 is pending before this court and therefore, requested to await the order o .....

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pped. (b) Further, cum-duty tax benefit was allowed to the petitioner for they did not collect such service tax from recipients. 29. The aforesaid order-on-remand dated 28th November, 2014 passed by respondent no. 2 though appealable order and an appeal against the same can be filed before the appellate tribunal, but as the earlier order of the appellate tribunal is already against the petitioner and is binding on it. Hence, the remedy by way of appeal is not efficacious and effective. 30. In th .....

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with the appeal that the rival contentions now need to be noted. 31. It is submitted that the impugned order is ex-facie erroneous and wholly perverse. It is also submitted that it is incorrect on facts as well as on law. It is a non speaking order. The second respondent has not rendered findings on the submissions canvassed by the petitioner before him. 32. Mr. Sridharan learned Senior Counsel appearing for the petitioner, in support of the writ petition and the appeal submitted that the show c .....

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w the activity undertaken by the petitioner and which is sought to be taxed by the Department falls under the definition of management, maintenance and repair service , construction of commercial complex service and site formation and excavation service as defined under the Finance Act, 1994. The service provided by the service provider, which is sought to be taxed is the core of any show cause notice. The petitioner submits that the activity undertaken by the petitioner does not fall under taxa .....

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nd is based, then, even the impugned order, which fails to indicate the broad parameters of the demand and the details thereof, must stand vitiated in law. The entire proceedings, therefore, deserve to be quashed and set aside. 34. Mr. Sridharan submits that the second respondent has excluded the portion, which pertains to repair and maintenance of roads and confirmed the rest of the demand. Under which category he has confirmed the demand is also not clear. Therefore, the findings are vague and .....

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Similarly, it undertakes repair and maintenance like improving and surfacing of runways, taxiways/apron ways. 36. Mr. Sridharan submits that the present dispute pertains to (i) repair and maintenance of roads and (ii) repair and maintenance of airport runways/taxiways/apron ways. The period in question is 16th June, 2005 to 27th July, 2009. 16th June, 2005 is the starting point of demand, since from that date only management, maintenance or repair service included immovable property. That is al .....

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ugh the activity has remained the same. Mr. Sridharan submits that all contracts entered into with the customer involved the supply of material as well as the supply of services. In other words, none of the contracts entered into with the customer are pure labour or pure service contracts. They are in the nature of works contract. The petitioner/appellant has duly paid sales tax on all the contracts involved in the present case treating the same as works contract. The same is also duly reflected .....

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the airport premises. Apron roads are roads wherein the aircraft moves to the parking area after landing/take off. The method of construction/specification in terms of thickness of the layers and other parameters for all the three portions, namely, runway, taxiway and apron road are the same. Mr. Sridharan submits that upon the show cause dated 14th October, 2010, the initial order-in-original dated 28th October, 2011 was passed confirming the demand. That order was challenged before the CESTAT .....

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mmercial Government buildings with effect from 16th June, 2005. 38. In the initial order dated 29th May, 2013, the CESTAT remanded the matter back to the adjudicating authority for considering the plea for grant of exemption under sections 97 and 98 of the Finance Act, 1994. The adjudicating authority was directed to consider the plea of the petitioner for exclusion of the value of the material and also the plea that majority demand of tax is barred by limitation. 39. Mr. Sridharan submits that .....

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d airports are excluded from the levy of service tax under commercial or industrial construction service vide clause 65(25b) read with section 65(105)(zzq), the same are still taxable under management, maintenance or repair service as defined in section 65(64) of the Finance Act, 1994 read with section 65(105) thereof. 40. Mr. Sridharan would submit that commercial or industrial construction service was introduced as taxable service under the head construction service with effect from 10th Septe .....

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ent that repairs of road and airport is specifically excluded from the definition of commercial and industrial construction. Once it is so excluded, the same cannot be taxed under any general category of management, maintenance or repair service. Mr. Sridharan submits that specific exclusion from one taxable clause will prevail over general description in another taxable clause. Mr. Sridharan submits that clause 65(25b) of the Finance Act, 1994 inter alia relating to maintenance or management of .....

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, it would be illogical to suggest that it is still covered under taxable head maintenance or repair service . This would render the exclusion granted to the activity of repair and maintenance of roads under taxable head of commercial or industrial construction service redundant. 41. Mr. Sridharan submits that it could never be the intention of the legislature to grant exclusion under one head and to tax the same activity under different head. The legislature never intends to give or confer by o .....

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r relying on another principle laid down in several decisions of the High Courts and the Hon'ble Supreme Court of India submitted that the reasons assigned by the CESTAT are erroneous and unsustainable. Mr. Sridharan submits that the tribunal's order is based on an assumption that if repair and maintenance of roads and airport is held as not falling under commercial and industrial construction service , then, there would be no need to retrospectively exempt the same activity by interpret .....

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ted in public interest. Mr. Sridharan submits that when legislature acts in this manner, the legislation cannot be defeated and frustrated. The tribunal has precisely done that according to Mr. Sridharan. 43. Mr. Sridharan's second contention is that road is a genus of which runway is the species. The repair services rendered qua runway will also be exempt in terms of section 97 of the Finance Act, 1994. Mr. Sridharan submits that the term road is a broad term and runway is species of the ro .....

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runway cannot be left out or excluded from this broad concept of road. Mr. Sridharan has relied upon a judgment of a Division Bench of this court in the case of Union of India vs. Authority under the Minimum Wages Act AIR 1969 Bom. 380. 44. It is then contended by Mr. Sridharan that runway is part of airport only. The benefit of section 98, which provides retrospective exemption to repair/maintenance services provided to non-commercial Government buildings, has to be extended to runways of airp .....

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case, later part of the demand pertains to defence airports at Yelakhana and Bidar which are exclusively used for defence operations. In such circumstances, when the definition of the term airport appearing in section 2(b) of the Airports Authority of India Act, 1994 can be safely utilised and it includes the runways, then, it would be absurd to suggest that maintenance and repairs done to a road/open parking lot in a society building would not be considered a part of the building. In the circu .....

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xable head will cover only service simplicitor and not works contract. Mr. Sridharan submits that 60% of the value of the total contract is attributable to material supply. In these circumstances, even on this ground, this court should allow the writ petition and grant all the reliefs. Mr. Sridharan has relied upon the definition of the term works contract under the Finance Act, 1994. He submits that upon a plain reading of this definition, it would be evident that works contract with respect to .....

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377; 37,79,784/- is incorrect. This is under category of site formation, excavation services. The commissioner held that the activity was performed at a place very far off from the site of construction and was undertaken for excavating the material which was required for road making situated away from the actual place where the road was to be laid. That is why the Commissioner held that the activity in question was done far away from road and does not qualify as exemption under Notification No.1 .....

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t is incorrect to hold that no evidence is produced. Mr. Sridharan submits that at least for this purpose, the matter should be remanded back to the commissioner. 47. Mr. Sridharan submits that the demand is barred by limitation. The issue in the present case involves interpretation of law. The petitioner/appellant was of the bonafide view that they are not liable to pay service tax. The customers are also Government. The service tax being an indirect tax and eventually the liability is of the c .....

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Limited, 2013 (29) STR 554 (Ker.) (iv) Commissioner of Central Excise and Customs, Kerala vs. M/s. Larsen and Toubro Ltd., 2015 TIOL 187 SC- ST (v) Tahsildar Singh and Anr. vs. State of U. P., 1959 Supp (2) SCR 875 49. Mr. Jetly appearing for the respondents fully supports the impugned order. Mr. Jetly submits that the petition is devoid of merits and deserves to be dismissed. Mr. Jetly submits that the demand was rightly raised. It should be sustained for the petitioner/appellant is indulging i .....

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ermissible in law, then, this court should not, in its extraordinary and equitable jurisdiction under Article 226 of the Constitution of India, interfere with pure finding of fact. The view taken is neither perverse nor vitiated by error of law apparent on the face of the record. Hence, the writ petition be dismissed. 50. Mr. Jetly has relied upon the following judgments. (i) M. C. Mehta vs. Union of India, AIR 1999 SC 2367 (ii) Roshan Lal and Ors. vs. International Airport Authority of India an .....

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ous agencies like Airport Authority of India, Municipal Corporation of the City of Nagpur and CPWD etc. The intelligence also revealed that the petitioner is providing services such as repairs and strengthening of roads, improvement and resurfacing of runways, periodical renewal of National Highways etc. and construction of toll plazas to said agencies and receiving crores of rupees for this purpose. 52. After referring to the definition of the above services, as appearing in the Finance Act, 19 .....

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nstruction of a new road. Further, it appears from the definition of the management, maintenance or repair service that the work of strengthening or repairs of road amounts to providing of service in relation to management, maintenance or repair of properties. The notifications exempting the services of maintenance or repairs of roads from whole of the service tax leviable thereon with effect from 27th July, 2009 has been specifically referred in the show cause notice. It is, therefore, alleged .....

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53. The response of the petitioner/appellant has been that the definitions under the Finance Act, 1994 and the exemption notifications based thereon would reveal that the excavation and earth work has been carried out for construction of roads. Notification No. 17/2005-ST dated 7th June, 2005 grants total exemption from service tax on site formation and excavation services, when rendered in the course of construction of roads. As such, out of the total value of taxable services attributable to t .....

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the attention of the Revenue was invited to Board Circular No.110/04/2009-ST dated 23rd February, 2009 with regard to levy of service tax on maintenance and repairs of road. Para 3 of the circular has been relied upon and it has been submitted that activity of extension/resurfacing, strengthening rendered in connection with runways within the area of airport cannot be equated with a road by relying on this circular. This response of the petitioner is to be found in para 9 of the reply to the sh .....

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in the show cause notice and the reply thereto in para 14 of the order and held that the main issues to be decided are whether the activities of the petitioner are classifiable and taxable under the category of site formation, maintenance or repair of property and construction of complex and whether the demand is hit by limitation. Finally, whether the petitioner is liable for payment of interest under section 75 of the Finance Act, 1994. 56. The order refers to the wording in Notification No. 1 .....

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red in the course of construction of roads, airports and runways etc., that does not apply to the activity of site formation which was performed at a place very far off and not on the actual site of road making and was undertaken for excavating the material which was required for road making, namely quarrying of metal, murrum etc. from a place situated away from the actual place where the road was to be laid. Thus, it was on the petitioners to establish that they were entitled to the exemption a .....

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distinction, thus, was made between an activity styled as construction of road and which is termed as distinct from maintenance of road. It was held that the petitioners did not submit any documentary evidence to indicate that the said activity was undertaken by them for construction of road and not for maintenance of road. That is why the petitioner's submissions were rejected. 57. As far as other aspect is concerned, namely, maintenance, management and repair service, the findings are as u .....

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had undertaken the work of Resurfacing of Runway, Apron Taxiways and Strengthening of Apron Taxiways and also the work of BT Renewal of certain roads which required relaying the Black topping to the roads e.g. in the case of Sonegaon Bela Sirsi Road. That the work of Short Term Improvement and routine maintenance undertaken by us during the year 2008-09 and 2009-10 for Nagpur-Hyderabad section was a composite contract involving execution of reconstruction of part of damaged road and other ancil .....

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ategory A (III) of the circular no. 110/4/2009-S.T., dated 23-2-2009 as taxable being maintenance. The circular is very vivid and is binding on the officers of revenue. In view of the same I find that the submissions of the noticee as regards to taxability are not at all tenable and rejected. 15.1. In view of the above findings, I hold that the demand of ₹ 102572125/- raised under show cause notice F. No. IV(16)30-192/ST/ADJ/2010/24872, dated 14-10-2010 is recoverable from the notice. 15.2 .....

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ice dtd 14.10.2010 issued by the Commissioner of Central Excise, Nagpur, for an amount of ₹ 102572125/-. Accordingly, both the show cause notices are disposed off with this Order in Original. 58. On the point of limitation, the initial order passed in 2011 held that the demand in the case has been prepared after calling for copies of the contracts, studying the nature of work undertaken, which was not forthcoming from the balance-sheet, but after scrutiny of the various documents. The case .....

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he balance-sheet. Hence, till the details were submitted by the petitioner, it was not clear as to whether it was engaged in any activity of maintenance or otherwise. Further, the petitioner was working under self assessment. It was not for the Department to inform the petitioner as to how it should compute their tax liability. Thus, it was its bounden duty to have correctly assessed the service tax duty. The value of taxable service escaped assessment of service tax on account of the failure to .....

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er. 60. This order was challenged in appeal before the CESTAT, West Zonal Bench, Mumbai. Application for stay was also made and from the record, it appears that an order was passed on the stay application on 30th July, 2012 directing deposit of ₹ 3 crores. That was on the prima facie view as reflected from that order. 61. This order on the stay application was challenged before this court in Central Excise Appeal (L) No. 137 of 2012 and on 29th November, 2012, this appeal was allowed and t .....

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xemption was given retrospective effect vide section 75 of the Finance Act, 2012 for the period starting from 16th June, 2005 onwards. 63. This part of the tribunal's order having already been complied with by the Commissioner, as is apparent from para 11.1 of the impugned order at page 81 of the paper book, we need not dwell on the same any further. 64. The tribunal's finding and which is mainly impugned before us is contained in para 5.2. There, it is held that in the absence of a spec .....

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gement, maintenance or repair of roads 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 re .....

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apter V of the Finance Act, 1994. Section 65 contains several definitions and we are concerned with clause (105), which defines taxable service to mean any service provided or to be provided to any person by any person in relation to management, maintenance or repair. Then, reliance is placed upon the definition of the term airport as appearing in the Finance Act, 1994. That definition is to be found in section 65 clause (3c). That reads as under:- 65(3c) airport has the meaning assigned to it i .....

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argument is that the charging section applies both the clauses, namely section 65(64) and section 65(105) uniformly. Mr. Sridharan submits that repairs of road and airport is specifically excluded from the definition of industrial construction. Hence, the same cannot be taxed under another general category, namely, management, maintenance or repair service . Specific exclusion from main taxable clause will prevail over a general description in another taxable clause. In that regard, Mr. Sridhar .....

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ications or fittings and other similar services, in relation to building or civil structure; or (d) repair, alteration, renovation or restoration of, 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 i .....

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roads, airports, railways, transport terminals, bridges, tunnels or dams. If that is excluded from commercial or industrial construction, then, the same cannot be taxed under another general category of management, maintenance or repair service. 70. We are unable to accept this contention and for more than one reason. We are not concerned here with the wisdom of the legislature in taxing services and of varied categories. Merely because repair of road and airports is specifically excluded from t .....

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rily for or occupied or to be occupied primarily with or engaged or to be engaged primarily in commerce or industry, or work intended for commerce or industry. From that service, the legislature excluded services provided in respect of roads, airports, transport terminals etc. The reason is obvious because the section contains a definition. The service provided could be for maintenance of utilities. Such maintenance may also include repairs. Therefore, the legislature thought it fit to bring it .....

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motor vehicle and also substituted it by the Finance Act, 2006 with effect from 1st May, 2006. It also substituted the Explanation below section 65(64) with effect from 15th May, 2008 to state that for the purpose of section 65(64) goods includes computer software and properties includes information technology software. However, when the legislature brought in the concept of taxable service by section 65(105) and defined it to mean any service provided or to be provided to person by any person i .....

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o accept the argument of Mr. Sridharan based on the wording of section 65(25b) and section 65(64). As we have already held above, the definitions are for the purpose of understanding the taxable service provided or to be provided by a stock-broker, to a policy holder by an insurer, by an advertising agency, by a courier agency etc. and when it came to service in relation to management, maintenance or repair, the legislature was free to tax it. Merely because repairs of roads and airports is spec .....

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e or repair including reconditioning on restoration, or servicing of any goods, excluding a motor vehicle. Mr. Sridharan does not urge that roads and airports are not properties. It is the management of properties as also their maintenance or repairs, irrespective of whether they are immovable or not, which is a management, maintenance or repair service. Once it is taxable, then, whether it is in relation to road or airport is hardly relevant and material for us. It is not for us to sit in judgm .....

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any merit. The whole argument proceeds on the logic of the legislature in excluding from one definition the aspect of maintenance or repair and including it in some other definition. In that regard, we find that commercial or industrial construction service is defined in section 65(25b) and in its wisdom, the legislature thought the services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dam would not be necessarily commercial or industrial construct .....

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ise could be brought, then, we do not think that we should uphold the argument of Mr. Sridharan. It is clear that in matter of taxation, when the language of the section or provision is clear and unambiguous, then, the court must give effect to it. There is no question of then interpreting the provision and by finding out the supposed intention of the legislature. It is only when the language is not clear but ambiguous or obscure, then, there is scope for interpretation. In the present case, we .....

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and clear. Once the matter is understood in this manner, then, the submission of Mr. Sridharan, based on the judgment of the Hon'ble Supreme Court of India in the case of Tahsildar Singh (supra) cannot be accepted. 71. In the case of Tahsildar Singh (supra), the Hon'ble Supreme Court of India was concerned with construction of section 162 of the Code of Criminal Procedure, 1898. The argument before the Hon'ble Supreme Court was that section 162 of Cr. P. C. by its own operation attra .....

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on' is of such wide connotation that it takes in all material omissions and the court can decide whether one such omission has to amount to contradiction only after the question is put, answered and relevant portion or part of it is marked and therefore, no attempt should be made to evolve an arguable principle but the question must be decided at large by the Judge concerned on facts of each case. 72. It is in that context, the Hon'ble Supreme Court, after reproducing both, section 162 o .....

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Hon'ble Supreme Court of India held in para 14 that unless the words are clear, the court should not so construe the proviso as to attribute the intention of legislature to give with one hand and take away with another. A sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two. But, if the words are clear, plain and unambiguous, then, we do not think how this principle can have any application. 73. Then, Mr. Sridharan places re .....

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ng been exempted from tax, they cannot be brought to tax by relying on the residual entry. It is in that context that the Hon ble Supreme Court relied upon the principle that when there is a law generally dealing with a subject and another dealing with one of the topics comprised therein, then, general law is to be construed as yielding to the special in respect of matters comprised therein. We do not think this principle in para 8 would be said to be attracted and can be applied to the facts of .....

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ner of Central Excise, Ludhiana 2007 (8) STR 337 (P&H). That case dealt with a pathological laboratory. A sample collection centre was managed for specialized laboratories. The sample collection centre collected the samples, processed them to the extent required and forwarded them to the test laboratory. The test laboratory and the sample collection centre had a principal agent relationship. After referring to the basic terms and conditions of this agreement, the tribunal proceeded to consid .....

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it of drawing, processing and forwarding of samples is integral to the testing of those samples. One of the orders impugned before the tribunal also noted that drawing of test sample may form part of test analysis. Therefore, the tribunal held that once they are held to be so integral, then, in the factual situation and the broad scope of the definition brings these services rendered by collection centre within the scope of technical testing and analysis . Once there is a specific entry for an .....

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r. Sridharan has been pressed into service. It is this principle which was relied upon by the Hon ble High Court of Punjab and Haryana to dismiss the appeal of the Revenue. Once again, application of this principle must be seen in the backdrop of the peculiar facts and circumstances. 75. The other decision relied upon by Mr. Sridharan is in the case of Commissioner of Customs and central Excise vs. Federal Bank Limited 2013 (29) STR 554 (Ker.). The High Court of Kerala was considering the questi .....

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king and other financial services. Banking and other financial services are specifically covered by clause (12) of section 65. Federal Bank is rendering banking/financial services. There is no scope for charging tax for this service rendered by bank under any other head. The High Court held that clause (12) of section 65 covers all charging services rendered by bank. It is in these circumstances but for different reasons the tribunal s view was upheld. This judgment also has no application to th .....

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mmissioner of Central Excise, Customs and Service Tax 2011(28) STR 574 (Ker.) and Meteor Satellite Limited vs. Income Tax Officer, Companies circle-IX, Ahmedabad (1980) 121 ITR 311 (Gujarat). 77. Then, Mr. Sridharan assailed the reasons which are assigned by CESTAT while interpreting section 97 of the Finance Act, 1994. We do not think that Mr. Sridharan s arguments on this point are well founded. This is not a case of the legislature granting exemption from tax as and by way of abundant caution .....

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he Principles of Statutory Interpretation by Justice G. P. Singh, Seventh Edition page 66. 78. The principle of presence of an exemption notification and that covering a composite contract by itself is not indicative that the services or contracts referred therein were taxable, also cannot be relied upon. The levy of service tax was itself found to be nonexistent. Therefore, question of exemption would not arise. In other words, what could be brought to tax alone can be exempted from it or the l .....

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ntention also is well founded. We have already noted that there is a difference even in commercial parlance between these two words and terms. These terms being not defined in the Finance Act, 1994, it is conceded that they must take their colour from their common parlance meaning. They must be understood and interpreted as known to the commercial world. Even the plain dictionary meaning does not support the above contention. Concise Oxford Dictionary, 1990 Edition says that runway is a speciall .....

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y is construed and understood. Runway is made or specifically prepared along which a aircraft takes off and lands. Eventually, it is not how it is made and surfaced, but what it is utilized for which is relevant. We do not think, therefore, that the premise or foundation that road is a genus of which runway is species is correct and proper. Mr. Sridharan submits that road is a wide term and included in it is a runway. Hence, it is no different from a road. We are unable to agree. 81. The relianc .....

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the meaning of Entry No. 7 in part I of the Schedule to the Minimum Wages Act, 1948 and therefore, he had jurisdiction to entertain and try the application. He directed that the application should proceed on merits. 82. The argument was that respondent no. 2 to 201 before this court were in employment on the construction or maintenance of roads. Construction or maintenance of a railway track is not covered by expression construction or maintenance of roads . Therefore, the Division Bench was re .....

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mean foundation, structure of a railway , then, there is no reason why the railway should not mean a road or a line of communication between places for use of vehicles. Once a railway engine or wagon or compartment would undoubtedly fall within the meaning of the word vehicle as carriage conveyance of any kind used on land, then, in the opinion of the Division Bench, the maintenance of railway contract would fall within the broad category. That is how it carved out the principle that road is ge .....

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as to be construed and interpreted as it stands. There is no scope then for interpretation. Para 8 of the decision of the Division Bench would clinch the issue, which reads as under:- 8. It is an ordinary rule of interpretation of statutes that the words of a statute when there is a doubt about their meaning are to be understood in the sense in which they best harmonise with the subject of the enactment and the object which the legislature has in view. When dealing with particular business or tr .....

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o any special meaning that the word any special meaning that the word may bear in any other enactment which has a different subject of enactment and has a different object to be achieved in view. It would, therefore, appear that the construction or maintenance of roads would include construction and maintenance of railway, rail-road or railway tracks. 83. Hence, we are not in agreement with Mr. Sridharan that section 97 should be interpreted as suggested by him. We do not think that for the abov .....

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or services simpliciter recognized by the world of commerce and law as such and have to be taxed separately. It is in the context of such essential controversy that all observations and conclusions rendered from paras 24 to 29, relied upon by Mr. Sridharan must be seen. Even para 43, relied upon by Mr. Sridharan of this judgment cannot be read out of context and in isolation. If there is no charge or machinery to levy and recover tax on individual or composite works contract, then, none of the a .....

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ack stranded aircraft specialized recovery vehicles are brought on runway does not mean that runways are roads. We do not think that section 97 can be construed in this manner. 85. Then, the third submission is pertaining to section 98 of the Finance Act, 1994. That grants retrospective exemption to repair/maintenance services provided to non commercial Government buildings. The argument is that the same must be extended to repair of airports as well. It is submitted that management, maintenance .....

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done to roads which are part of the building or airport will not fall within this provision. We do not think that such contentions and far fetched as they are can be accepted. Mr. Sridharan forgets that we are not construing as to whether airport is covered by section 98 of the Finance Act, 1994. We are concerned here with appellant s specific case. Some of the services provided included extension, strengthening of runways, taxi ways, apron taxi ways. We are concerned with these services. Wheth .....

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