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TMI Blog2018 (9) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... ovider nor had filed ST-3 Returns during the period April 2006 to September, 2007. Thus, it is alleged that he had failed to discharge the tax liability. Resultantly, the show cause notice (SCN) No.2890 dated 29th December, 2011 was issued upon the appellant levying the demand of Rs. 84,18,735/- alongwith the appropriate interest and the proportionate penalties under Section 76, 77 & 78. The said SCN was adjudicated against the appellant vide the order under challenge. Resultantly, the present appeal. 3. We have heard Ms. Rinki Arora, ld. Advocate for the appellant and Mr. Vivek Pandey, ld. DR for the Department. 4. It is submitted on behalf of the appellant that during the impugned period, the appellant was awarded the work orders for construction of new roads and upgradation of existing roads, community halls and staff quarters for railway, Godown and common option platform for Rajasthan State Agricultural Marketing Board, ITI College Building for Government, long distance pipe line for PHED and boundary walls for Shri Ganganagar Sahkari Upbhokta Whole Sale Bhandar Ltd. It is submitted that all the above work orders are excluded from the ambit of commercial and industrial const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct from 1st June, 2007 under Section 65(105)(zzzza) of the Act need to be looked into. Section 65 (64) read as: (64) "maintenance or repair" means any service provided by- (i) any person under a maintenance contract or agreement; or (ii) a manufacturer or any person authorised by him, in relation to maintenance or repair or servicing of any goods or equipment, excluding motor vehicle; Section 65 (105) (zzzza) reads as:- (zzzza) to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. Explanation.-For the purposes of this sub-clause, "works contract" means a contract wherein,- (i) transfer of property in goods involved in the execution of such contract is leviable to tax as sale of goods, and (ii) such contract is for the purposes of carrying out,- (a) erection, commissioning or installation of plant, machinery, equipment or structures, whether pre-fabricated or otherwise, installation of electrical and electronic devices, plumbing, drain laying or other installations for transport of fluids, heating, ventilation or air-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been defined under statute. As per the dictionary meaning (K.J. Aiyer's Judicial Dictionary) road is a passage. Hon'ble Bombay High Court in Union of India vs. Authority under Minimum Wages Act, 1969 - Bom.- 310 has held that the expression is wide enough to cover rail-roads, railway tracks, Air runway and even driveway to petrol pump. As per Sec. 65 (25)b of Finance Act, Commercial & Industrial Construction Service means (d) repair, alteration, renovation or restoration of or similar services in relation to building or civil structure, pipeline or conduit. ....... but doesn't include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels & dams. Since repair of roads is specifically excluded under Commercial & Industrial Construction Service, the said activity cannot be brought under Management, Maintenance & Repair Service under Section 65 (64) of the Act, as it was held in the case of D.P. Jain & Co. Infrastructure Pvt. Ltd. vs. CCE, Raipur - 2014 (33) STR 668 (Tri.-Mumbai). Also Notification No.24/2009 - ST dated 27.07.2009 provides for exemption to services in relation to Management, Maintenance & Repair of roads from the wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. There is nothing on record to prove that the building of ITI was meant to be used for commercial purposes. Industrial Training Institute is otherwise constituted under sanction of law. We therefore are of the opinion that adjudicating authority has rightly dropped the said demand as well. The order to that extent again deserves to be upheld. 4. Construction of Godowns, Common Auction Platforms for Rajasthan State Agri Marketing Board. Though the argument of appellant qua this work contract is that the said construction being the construction for Rajasthan State Agriculture Marketing Board, hence, cannot be called as commercial construction/ work contract service. But we are of the opinion that common auction platform in the market irrespective running under any State Marketing Board but factually is meant for the commercial activities by various private business entities for profit. As such the said platforms cannot be considered as non-commercial area. The construction thereof would definitely fall under the commercial and industrial construction and the service for executing the work contract thereof shall definitely be liable to tax. The findings of the adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by paying an amount equivalent to 2% upto 1st March, 2008 or 4% w.e.f. 1st March, 2008 onwards on the gross amount charged for the works contract instead of paying Service Tax at the rate specified in Section 66 of the Finance Act, provided, he does not avail the cenvat credit. Since the work orders executed by the appellant include the material involved therein, they fall under the definition of work contract as has also been held by the adjudicating authority below. However, the said authority has committed an error while denying the benefit of this provision to the appellant. The ground taken by the authority for said denial is opined irrelevant as there is no mandatory declaration required on part of the appellant about opting for Composition Scheme. Otherwise also the composition scheme is a beneficial legislation, benefit thereof has always to be given to the appellant. Above all it is for the assessee to opt and not for the department to direct assessee a particular mode of discharge of liability out of two prescribed by law. We, therefore are of the opinion that Commissioner has committed an error while denying the benefit of Composition Scheme to the appellant despite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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