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2020 (3) TMI 319

..... ntract service’ and ‘commercial and industrial construction service’ - period from 2009-10 to 2012-13 - HELD THAT:- We cannot concur with the Learned Authorised Representative as the conclusion of the adjudicating authority lacks legal soundness. We are unable to comprehend the resort to Railways Act, 1989 for a broader understanding of expression ‘railways’ in the absence of permissible referral in section 65(105)(zzzza) or (zzp), or, for that matter, anywhere in section 65, of Finance Act, 1994. In the absence of such authority, it is the common parlance understanding that should have been adopted. Even if a conscientious disposal of the allegations did prompt such recourse, it should have been appreciated by .....

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..... d pertains to five projects undertaken by the appellant which, admittedly, relate to enabling of locomotives to travel over specified stretches. Of these projects, it has been held in the impugned order that, while the construction of a railway siding track works at Dronagiri for M/s Hind Terminals Pvt Ltd in 2009-10 was chargeable to tax under section 65 (105) (zzzza) of Finance Act, 1994 as provider of works contract service , the projects contracted with M/s ACC Ltd, M/s Utkal Alumina International Ltd, M/s Utility Energytech & Engineers Pvt Ltd and M/s Bulk Cement Corporation (India) Ltd were liable to tax under section 65(105)(zzq) of Finance Act, 1994, as provider of commercial and industrial construction service , for the entire .....

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..... from identical entries in section 65(105) that existed prior to incorporation of tax on works contract service to restrict the taxability under the earlier provisions to services simpliciter. It is difficult to conceive of the impugned projects having been rendered sans materials and, thereby, failure to evaluate for coverage under works contract is a glaring charm that lies unbridged. While the adjudicating authority may not have had the benefit of the judicial wisdom articulated in re Larsen & Toubro, the blindsided approach to classification of the service sought to be taxed under section 65(105)(zzzza) of Finance Act, 1994 may not deserve tolerated discard. A careful and balanced perusal of the taxing entry would make it apparent, .....

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..... non-government railways in Railway Act, 1989 and through circuitous reasoning derived from selective rejection of the lexical meanings of some of the expressions in the definition, the exclusions intended by Parliament could not be extended to private operations. 5. According to Learned Counsel for the appellant, the exclusions in the two taxing entries did not encompass any stated, or implied, qualification that could be assumed to empower the adjudicating authority to distinguish railway construction in the manner recorded in the impugned order. He placed reliance on the decision of the Tribunal in Afcons Infrastructure Ltd v. Commissioner of Central Excise, Mumbai-II [2013-TIOL-1225-CESTAT-MUM] which has held that 4. The learned Commissi .....

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..... struction Service as provided in Section 65(25b) excludes such activities relating to roads, ports, railways, dams, bridges, tunnels etc. There is no distinction between a monorail or metro rail or any other kind of rail and, therefore, the term railways used therein has to be given its widest meaning to include all types of railways and all types of railway lines. Therefore, the distinction sought to be made by the adjudicating authority is not sustainable in law. 5.2 Secondly, we do not find any basis for the conclusion drawn by the learned adjudicating authority by referring to some decision of the Government while examining the scope of the terms railways in the context of certain tax exemptions. There is no evidence before us to show t .....

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..... rovided in respect of road only, in our considered view, it cannot be interpreted that only construction of public roads should get the benefit of exclusion provided in such definition clause. In other words, irrespective of the purpose of construction of the road, whether for public utility or for the utility of organization concerned for their use, the benefit of exclusion clause provided in the definition under [Section] 65(25)(b) of the Act should be available, for non-levy of Service Tax. Since there is no ambiguity in plain reading of the definition and in view of the admitted fact that the appellant had constructed roads for different commercial entities/ organization, the benefit of the exclusion provided in the definition clause sh .....

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..... territory. 8. The constructions excluded from taxability under both the entries in section 65(105) of Finance Act, 1994 are, plainly, unqualified. The legislative intent, therefore, cannot be circumscribed by encroachment, or restrictive interpretation, ventured upon by tax authority. In Commissioner of Sales Tax, Uttar Pradesh v. Modi Sugar Mills Ltd [1961 AIR 1047], the Hon ble Supreme Court has held that 11…… In interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing statutes be interpreted on any presumptions or assumptions. The court must look squarely at the birds of the statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed; it c .....

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