TMI Blog2016 (9) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... iate concerns - it was contended that tax liability was being discharged upon receipt of dues as prescribed in the statute upto May 2008 - Held that:- Department was not in a position to convince us that these submissions were incorrect. Accordingly, we hold that the dues that were liable to be discharged by various payments made as claimed in the appeal and as recorded in the impugned orders on the respective heads. We are, therefore, left to examine in detail the submissions made in connection with the construction of railway sidings and the sinking of the mine shaft on which, admittedly, the appellant has not effected any payment of tax. Demand alongwith interest and penalties - work related to mines - Held that:- in the light of a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nagvenkar, Additional Commissioner (AR) for the respondent ORDER M/s SMS infrastructure is in appeal before us against two orders-in-original both passed by Commissioner of Central Excise Customs, Nagpur in relation .to various activities undertaken by them and incomes received as providers of service. They are, primarily, contractors for infrastructure projects and the demands pertain to alleged non-payment of tax under Finance Act, 1994 by them. The first appeal is directed against order no. 09/ST/2010/C dated 29 th October 2010 which has confirmed a total amount of ₹ 28,48,55,027/-as tax due besides interest and imposing penalties under section 76 and 78 of Finance Act, 1994. The second is directed against order no. 61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s MAHAGENCO and ₹ 4,14,14,117/- towards tax unpaid on mobilization advance received from principals with whom contracts were entered into. An amount of ₹ 2,44,52,615/- was demanded on account of outstandings from associate concerns. 4. Learned Senior Advocate presenting the case of the appellant has focussed on the taxes confirmed in relation to construction of railway sidings in both orders and the work related to mines in the first demand. It is contended that the work rendered to M/s MSRDCL was always claimed to be 'works contracts' which the adjudicating authority refused to accept and, according to him, the issue stands settled by the decision of the Hon'ble Supreme Court in Commissioner of Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade as claimed in the appeal and as recorded in the impugned orders on the respective heads. We are, therefore, left to examine in detail the submissions made in connection with the construction of railway sidings and the sinking of the mine shaft on which, admittedly, the appellant has not effected any payment of tax. 6. In relation to the mine, which Revenue claims to be nothing but site formation and clearance, it is the contention of the appellant that 'mining service' was rendered taxable only after 2007 and that 'site formation and clearance service was intended to tax the work that precedes construction activities.. Drawing attention to section 2 of the Coal Mines (Nationalisation Act, 1973, Learned Authorized Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perused the various contracts placed before us. These were entered into in consequence of a policy shift of the Government of India in the Ministry of Railways to tap private sector investment for building national assets in track and rolling stock. Elaborate rules, guidelines and contracts have been devised to render such high investment projects attractive to investors while at the same time retaining control over the additions to the railway network as well as its integration with the existing infrastructure. The relevant sub-clause in section 65 of Finance Act, 1994 which defines 'commercial and industrial construction is: '(25b) Commercial or Industrial Construction means - (a) construction of a new building or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition (supra). Revenue contends that the exemption is accorded to railways that are used as public carriage of passengers and goods which the projects undertaken by the appellant are not. Appellant relies upon the decision of the Tribunal in Afcons Infrastructure Ltd v Commissioner of Central Excise Mumbai-II [2015 (38) STR 194 (Tri-Mumbai)] and Delhi Metro Rail Corporation Limited v. Municipal Corporation of Delhi and Others [2008(103) DRJ] to drive home the point that coverage under Railways Act, 1989 is sufficient to consider any such infrastructure as railways. We notice that the Railway Act, 1989 provides for railways with public investment and private investment and both function under the same statute. Such railways establi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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