TMI Blog2023 (9) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... MI 1175 - CESTAT MUMBAI] , wherein this Tribunal has observed that The Railways Act, 1989 was enacted to authorize Government of India to operate the railway network of the country; it also affords a framework for administration of the railway services and jurisdictional monopoly. The taxable service in Finance Act, 1994 excluding railways from the ambit of the service did not place any restriction on benefit going to private railways. The statute, 10 ST/86191/2021 too, did not consider it necessary to fall back on the definition of railways in another statute for determination of taxability and it is not open to the adjudicating authority to arrogate that privilege in an executive capacity. The intent of exclusion prior to 1st July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hermal Power Station (BTPS) as Works Contract Service as defined in Section 65B (54) of the Finance Act, 1994. Such services were exempted from levy of service tax under Clause 14 (a) of exemption Notification No.25/2012- ST dated 20.06.2012. The said activity was not included in the definition of works contract service under Section 65(105)(zzz)(a) of the Act and under exemption Notification No.17/2005-ST dated 07.06.2005 prior to 01.07.2012. 3. Revenue is of the view that the activity undertaken by the appellant is works contract service to the above various service recipients. Therefore, they are liable to pay service tax under negative list and under exemption Notification No.17/2005-ST dated 07.06.2005 and under Clause 14 (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal in re KVR Rail Infra Projects Pvt Ltd is pending before the Hon ble Supreme Court and that the impugned project, undertaken exclusively for handling coal to be used by M/s National Thermal Power Corporation for generation of thermal energy, was not eligible for exemption intended for railways engaged in public carriage of persons and goods. 7. It is interesting to note that the assessee had placed reliance upon the decisions of the Tribunal supra before the original authority which did not appear to have carried much impression with him and, 6 ST/86191/2021 demonstrating inability to acknowledge the binding precedent of a judgment or decision of appellate authority or the manner in which it is to be read, the adjudicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Construction Company Ltd, held that 5. The exclusion, whether under the separate entry or within the umbrella of the new taxable service, of railways continued unabated. It would appear that the adjudicating authority was particularly impressed by the activity brought within the tax net to be ascertained on the basis of commerciality to bring it in conformity with the description of the taxable activity. Hence, according to him, the operation of the two recipients of service, being evidently commercial, did not merit the exclusion contained therein. For a better appreciation of the arguments, we deem it appropriate to record the particular finding the adjudicating authority that 3.7 The Term Railways mentioned in Section 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91/2021 any special dispensations such as tax exemptions. 6. We find no authority for these sweeping statements on the intent of Finance Act, 1994, the scope of the taxable service under which the levy has been confirmed or the status of railway operations in the country. In the context of the claim of the appellants, limited to the exclusion from the taxability otherwise attached to commercial or industrial construction service , we are not required to define the scope of the taxable service; the test of commercial imperative of the impugned activity is not in dispute. All that we are required to ascertain is the conformity of the operation of the recipients of the service to the excluded aspect of the taxable service. The adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p, is covered. Within the scheme of negative list , there is a specific exemption for metro or monorail within the broader exclusion available to Railways. The exclusion of metro or monorail has occurred only after the period of dispute and therefore does not concern us. 9. It is, thus, clear that the proposition of strict construction of intent of exemption notification must also go hand in hand with strict construction of every word/phrase therein. The exemption from tax is available to railways , excluding mono rail or metro, by notification no. 25/2012-ST dated 20th June 2012 after 1st July 2012 and, as conceded by the adjudicating authority, there being no definition of railway , either therein or in Finance Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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