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2016 (7) TMI 784 - BOMBAY HIGH COURT

2016 (7) TMI 784 - BOMBAY HIGH COURT - 2016 (43) S.T.R. 507 (Bom.) , [2016] 93 VST 468 (Bom) - 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 .....

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pose 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 specifically excluded from the definition of “commercial or industrial construction” it could still be brought in under the category of “management, maintenance or r .....

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finitions so as to understand taxable service if management, maintenance or repair is taken to 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 .....

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equired to find out whether definition of “airport” itself includes runways and even if they are 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 dis .....

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harged. - Decided against the appellant. - Writ Petition No. 7890 of 2015, Central Excise 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 .....

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respondent no. 2. 4. The petitioner is a company incorporated under the Indian Companies Act, 1956, 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 .....

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racts for construction of roads. 6. The present dispute pertains to (i) repair and maintenance 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 .....

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the records of the services rendered during the financial years 2005-06 to 2009-10, a show cause 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 & .....

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ices were covered by the definition of pre-existing category commercial or industrial construction 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 .....

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prospective effect. (vi) The extended period of limitation under proviso to section 73(1) of the 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 .....

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whichever is higher under section 76, of ₹ 5,000/- under section 77 and of ₹ 10,25,72,125/- 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 .....

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ies carried out. 15. Being aggrieved with the order-in-original dated 28th October, 2011, the petitioner 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 J .....

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nt, maintenance or repair of roads, during the period on and from the 16th day of June, 2005 to 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 fro .....

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dissatisfied by Order No.S/1059/12/CSTB/C-I dated 30th July, 2012 in Appeal No.ST/26/12 passed 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, .....

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, respondent no. 2 to grant the exemption provided under both these sections of the Finance Act, 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 .....

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tion service, the same are still taxable under the taxable head of management, maintenance or repair 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 ad .....

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ement, maintenance or repair service, even when it is specifically excluded from the scope of commercial 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 .....

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ntenance and repair of roads from 16th June, 2005. Therefore, to that extent the demand was dropped. (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 i .....

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hat the writ petition is filed. We having admitted it and directed that it will be heard along 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 appeari .....

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ument further, Mr. Sridharan would submit that the show cause notice does not indicate as to how 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. .....

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ran submits that once the show cause notice does not provide detailed breakup on which the demand 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 whic .....

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also undertakes works of repair and maintenance of road like strengthening and renewal of road. 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 t .....

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aps due to oversight. No show cause notice could have been issued for any subsequent period though 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 in .....

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rcraft lands or takes off. Taxiways are road on which the buses or any other vehicle ply within 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 2 .....

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ovided for retrospective exemption to activity of management, maintenance and repairs of non-commercial 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 als .....

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ces of repair, alteration, renovation, restoration or similar services with respect to roads and 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 wa .....

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and as appearing in section 2(b) of the Airport Authority of India Act, 1994, it would be apparent 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 t .....

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of commercial or industrial construction service under section 65(25b) of the Finance Act, 1994, 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 t .....

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are wholly unsustainable and they deserve to be quashed and set aside. 42. Mr. Sridharan, after 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 .....

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The intent of the legislature is to grant exemption as an abundant caution. The legislature acted 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, .....

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ertain types of wheeled vehicles, namely, motor car, bus, aircraft etc. In these circumstances, 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 .....

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structures. Mr. Sridharan submits that airports do not carry on any commercial activity. In any 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 .....

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The same cannot be covered under the category of repair and maintenance service as the said taxable 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 u .....

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ract service. 46. Then, it is submitted that the order of the Commissioner demanding tax of ₹ 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 .....

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ervice. The value of the material is not liable to service tax and should have been excluded. It 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 .....

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d., 2007(8) STR 337 (P & H) (iii) Commissioner of Customs, Central Excise vs. Federal Bank 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 th .....

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and repeated remands defeats justice. Once the view taken by the authorities is possible and permissible 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 I .....

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ice and site formation and clearance, excavation and earthmoving and demolition service to various 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. 5 .....

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s that the activity of strengthening of road is altogether distinct from that of building or construction 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 .....

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liability to the extent of ₹ 10,25,72,125/- was thus determined and the amount demanded. 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 .....

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pute with regard to services falling under the category of management, maintenance and repairs, 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 .....

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the order passed on 28th October, 2011, the adjudicating authority reproduced the allegations 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 .....

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r other ports. Thus, if the activity of site formation, excavation to be exempted must be rendered 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 b .....

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ould not be helpful when the activity undertaken by them pertained to maintenance of road. The 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 .....

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e term ST BT appearing in the contract mean Strengthening and Black Topping of roads. That they 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 c .....

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Black Topping) was an activity including strengthening of road which clearly falls under the category 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 noti .....

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. The period, amount and service of this show cause notice have been covered in show cause notice 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 wa .....

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furcation between construction and maintenance or repair activities. They were camouflaged in the 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 du .....

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est and penalty, the initial order did not uphold the claim and the contentions of the petitioner. 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 Cent .....

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n No. 24/2009, maintenance/repair of roads was exempted from the levy of service tax and such exemption 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 main .....

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der:- Notification: 24/2009-S. T. dated 27-Jul- 2009 Roads - Exemption from Service Tax to management, 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 .....

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person in relation to management, maintenance or repair of roads. Section 65 is contained in Chapter 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 i .....

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aerodrome as defined in clause (2) of section 2 of the Aircraft Act, 1934 (22 of 1934). 68. The 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 .....

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metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications 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 ind .....

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r, alteration, renovation etc., but that does not include such services provided in respect of 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 o .....

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uilding or civil structure, pipe line or conduit, but that ought to be used or to be used primarily 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. Su .....

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ance or repair including reconditioning on restoration, or servicing of any goods, excluding a 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 .....

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5 and by prior clauses would act as and provide a guideline. We do not see how it is possible to 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 r .....

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r immovable or not, maintenance or repair of properties, whether immovable or not or maintenance 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 relat .....

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ut any legal prohibition either. In such circumstances, we do not think that the submission has 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 .....

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a service and, in it, provision of such service in relation to any property immovable or otherwise 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 cl .....

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, 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. 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 be .....

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atement made during the course of trial. The second argument was that the word 'contradiction' 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. .....

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9;ble Supreme Court of India made the observations relied upon by Mr. Sridharan. Therefore, the 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, .....

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cles, the Division Bench held that the goods which are specifically referred to in Item 22 having 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 .....

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yana affirming the view of the Tribunal in the case of Dr. Lal Path Lab Pvt. Ltd. vs. Commissioner 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 .....

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ve also came to be considered. The tribunal held that services rendered by the appellant before 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 cen .....

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ary to the scheme of the legislation. It is in that context that the principle relied upon by Mr. 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. Fed .....

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very service covered by sub clause (i) and sub clause (vi), which do not specifically cover banking 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 fo .....

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distinguish the judgments relied upon, namely, Kerala State Industrial Enterprises Ltd. vs. Commissioner 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 .....

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rinciple and the maxim relied upon has any application, for that reason, we need not refer to the 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 .....

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o be exempted in terms of section 97 of the Finance Act, 1994. 80. We do not think that this contention 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 suppo .....

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road is understood as a passageway, track suitable for wheeled vehicles. That is not how runway 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 .....

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etent authority under the Minimum Wages Act held that the word road included a rail road within 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 co .....

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ces for use of foot passengers, riders and vehicles and the expression road-bed is described to 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 contrac .....

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n meaning. It is the plain language and if it is clear and does not lead to any absurdity, it has 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 enactmen .....

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ari material with this Act or by a judicial precedent, the literal meaning is to be preferred to 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. Sridhar .....

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urt concluded that a works contract is a separate species of contract distinct from contracts for 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 m .....

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rely because on some portions and adjacent to a runway, motor vehicles ply or to tow or bring back 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 sa .....

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4 includes the runways and therefore, it would be absurd to suggest that maintenance or repairs 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, st .....

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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. 86. Hence, we restrict the arguments made as above. 87. Even the fourth submission and based on the judgment in the case of Commissioner of Central Excise and Customs, Kerala vs. Larsen and Toubro (supra) cannot be accepted for the reason it is distinguishable on facts. 88. We do not think that the fift .....

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