TMI Blog2018 (9) TMI 661X X X X Extracts X X X X X X X X Extracts X X X X ..... directed against the order of Commissioner No.4/2013(ST)Commr. dated 31/01/2013/ 07.02.2013. 2. The facts relevant for the adjudication are that the appellant is a service provider and is registered under the category of construction services in respect of commercial or industrial building and civil structures. The appellant was also found engaged for providing services in relation to management maintenance or repair (MMR) services, work contract service and manpower supply service. The Department alleged that the appellant had received ₹ 2,40,77,168/- against exempted services and ₹ 7,48,08,499/- against above said taxable services during the period 2006-07 to 2010-11. The appellant neither obtained the registration for being service provider 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 ₹ 84,18,735/- alongwith the appropriate interest and the proportionate penalties under Section 76, 77 78. The said SCN was adjudicated against the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has clearly mentioned that the appellant has since failed to exercise the option as provided in Rule 3 (1) of Work Contract (Composition Scheme for Payment of Service Tax) Rules, 2007, the benefit has rightly been denied . Finally justifying the denial of the benefit of abatement as was prayed, ld. DR has prayed for appeal to be dismissed. 6. After hearing both the parties, the construction-wise / work order-wise findings of ours is as follows:- 1. Construction of road (modernisation and upgradation thereof) To adjudicate upon this demand, the definition of Maintenance, Management Repair Service (MMRS) which came into effect from 16th June, 2005 as per Section 65 (64) of the Finance Act, 2004 (the Act) and of Work Contract Service (WCS) which came into effect 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; Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st have regard to the strict letter of law. If the Revenue satisfies the Court that the case falls strictly within the provisions of law, the subject can be taxed. If on the other hand, the case is not covered within the four corners of the taxing statute, no tax can be imposed by inference or by analogy or by trying to prove into the intentions of the legislature and by considering what was the substance of the matter. The Hon ble Apex Court in the case of Aphali Pharmaceuticals Ltd. vs. State of Maharashtra 1989 (44) E.L.T. 613 (S.C.) has observed that a taxing statute must be interpreted in the light of what is clearly expressed therein and nothing can be implied nor can provisions be imported so as to support the assumed deficiency. 6.1.3. Applying these adjudications to the present case, we hold that road has 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 F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w thereof the construction of Railway falls out of the ambit of commercial and industrial construction and even falls in the exclusion clause of the work contract service. We therefore, are of the opinion that the adjudicating authority has rightly dropped this demand. Order to that extent is liable to be upheld. 3. Maintenance or Repair of Industrial Training Institute Building: We observe that Section 98 was incorporated in the Finance Act vide the amendment Act of year 2012. However, was given retrospective effect. As per the said Section, no Service Tax was liable to be paid in respect of management, maintenance or repair of non-commercial Government Buildings during the period from 16th June, 2005 till the time of the said amendment i.e. till the year 2012. The period of impugned demand is covered under the said Section. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y service has been dropped by the adjudicating authority below. We do not find any error while dropping the demand except that the demand with respect to Hanumangarh Sangria Road Project is dropped on the ground that the service in the said work contract is as that of commercial and industrial construction service, hence, will not be included under supply of manpower. We modify these findings that the said work falls under the exclusion clause of the Commercial Industrial Construction Service being road (as discussed above). 7. Now coming to the denial of the benefit of composition scheme. As per Rule 3(1) of Works Contracts (Composition Scheme) for Payment of Service Tax) Rules, 2007 the assessee has option in relation to works contract service to discharge his Service Tax liability on the works contract service provided or to be provided, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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