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TMI Blog2022 (10) TMI 629X X X X Extracts X X X X X X X X Extracts X X X X ..... f it is held that during the relevant period, the petitioners were required to pay service tax, then whether the same, if at all, could be recovered from respondent no.1 i.e., Municipal Corporation of Delhi [in short, "MCD".] 2. We may note, at the very outset, that Mr V.V. Gautam, who appears on behalf of the respondent no.1/MCD, does not dispute the proposition that service tax, if payable, will have to be reimbursed by the recipient to the service provider i.e., the petitioners in the aforementioned writ petitions. 3. Mr Gautam, in support of his submission, that service tax on maintenance of street lights was not payable, as it was exempted under the provisions of the Finance Act, 1994, relies upon the Notification bearing no. 24/2009-S.T, dated 27.07.2009 [in short, "2009 Notification".] 4. At this juncture, it would be relevant to extract the 2009 Notification: "Notification No. 24/2009-Service Tax G.S.R. (E).-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 exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed the following order : "Learned Senior Counsels / counsels for the petitioners and the respondent Corporation have relied upon two different notifications, inasmuch as Mr. Sandeep Sethi and Mr. Dhruv Mehta have relied upon a Notification No. 32/2010 dated June 22, 2010 which reads as under: "G.S.R. (E) In exercise of the powers conferred by subsection (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 provided to any person, by a distribution licencee, a distribution franchisee, or any other person by whatever name called, authorised to distribute power under the Electricity Act, 2003 (36 of 2003), for distribution of electricity, from the whole of service tax leviable thereon under Section 66 of the said Finance Act. 2. This notification shall come into force on the date of its publication in the Official Gazette." On the other hand, Mr. Poddar has relied upon the Notification No. 24/2009 dated July 27, 2009 which reads as under: "G.S.R. (E).- In exercise of the powers conferred by sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he very same extract of the order dated 15.07.2019, that the Learned Single Judge, after examining the contents of the aforementioned notifications, was of the view that there was no clarity, as to whether maintenance of street lights was exempted from service tax. 8.2. According to the Learned Single Judge, the affidavit filed by the Commissioner of Service Tax did not shed much light, on this aspect. 8.3. We are told that this affidavit of the Commissioner of Service Tax is dated 09.04.2015. 8.4. It is in this backdrop, that the Learned Single Judge directed the concerned member of the Central Board of Indirect Taxes & Customs ("CBIC') to file an affidavit clarifying the position, as to whether or not the provision of service, by way of maintenance of street lights, was exempted from levy of service tax. 8.5. Consequently, an affidavit dated 24.01.2020 was filed with this Court, albeit on behalf of the Commissioner, Central Goods and Service Tax, Delhi East Commissionerate. 8.6. Although the aforementioned affidavit was not filed by the concerned member of the CBIC, the contents of the affidavit do clear the fog, in a manner of speech, qua the controversy at hand. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, renovation, alteration of:- a) a civil structure or any other original works meant predominantly for use other than for commerce, industry or any other business or profession. "Original Works" means (i) all new construction; (ii) all types of additions and alterations to abandoned or damaged structures on land that are required to make them workable (iii) erection, commissioning or installation of plant machinery or equipment or structures, whether pre-fabricated or otherwise (Notification No. 24/2012 - Service Tax, dated 6th June 2012 refers). Not applicable as street light is not covered in the definition of original works. Advance Ruling Authority vide Ruling No. AAR/ST/09/2015 dated 28th August 2015 also observed same i.e. maintenance of street lights is not covered by entry no. 12A of Notification No. 25/2012- Service Tax. 4. That there is no exemption available for the services by way of maintenance of street lights provided to a local authority by any service provider including electricity distribution company such as BSES Rajdhani Power Ltd. or Tata Power Delhi Distribution Ltd. It is submitted accordingly." [Emphasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: 66.1 Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. 66.2 When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the Revenue. 66.3 The ratio in Sun Export case is not correct and all the decisions which took similar view as in Sun Export case stand overruled." 11.2. Also see the following judgments: Krishi Upaj Mandi Samiti, New Mandi Yard, Alwar v. Commissioner of Central Excise and Service Tax, Alwar, (2022) 5 SCC 62; Commissioner of Customs, Bangalore v. GE BE Ltd. and Anr., (2016) 15 SCC 733; Commissioner of Customs (Preventive), Mumbai v. M. Ambalal and Company, (2011) 2 SCC 74 and State of Jharkhand and Ors. v. Tata Cummins Ltd. and Anr., (2006) 4 SCC 57. 12. It is, however, Mr Gautam's contention that roads cannot be maintained or repaired unless the street lights are maintained. 12.1. To our minds, while the argument, at first blush, is attractive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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