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TMI Blog2024 (3) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... services to NBCC, tax liability with respect to the service classified as "Works Contract Services" was liable to be discharged in terms of Notification No.30/2012 dated 20.06.2012, S. No.9, i.e. 50% tax liability in the light of Notification No.25/2012, S. No.12(c) dated 20.06.2012 being later omitted vide Notification No.06/2015-service tax dated 01.03.2015. Hence, during the period 01.03.2015 to 28.02.2016, the Appellant was charging service tax on Works Contract Services and was paying to the Department. During the period, an amount of Rs.51,38,112/- has been paid as service tax to the Department in lieu of Works Contract Services provided to NBCC as a sub-contractor. Later, in the event of representations being made by the industry, the board regranted the exemption by once again amending the Mega Exemption Notification and re-inserted Clause 12 as Clause 12A vide Notification No.9/2016-Service Tax dated 01.03.2016, once again granting exemption from service tax. The Appellant approached the Department and filed a refund application in the prescribed format and alongwith all the necessary documents in the light of entry No.29(h) of Notification No.25/2012 dated 20.06.2012. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the main contractor could have filed such a refund claim but had not done so because six months had already lapsed. Learned Advocate further argues that regardless of the fact that who filed the refund claim, as far as the exemption is available, it should be applied. He submitted that the provisions of refund under Section 11B or under Section 102 of the Finance Act, 1994, nowhere, required that a particular person has to file a refund claim. The refund can be claimed by any person who has borne the burden of duty/ service tax. It could be the main contractor or sub-contractor or even the client themselves as long as they could establish that they have borne the burden of service tax. He further relied upon the CBEC Circular F.No.137/57/2011-ST dated 21.10.2011 regarding the exemption to commercial construction/ infrastructure development projects of road, airports, dams, tunnels etc, in which it has been clarified that where the services are provided by the sub-contractor to the main contractor they too will get covered by the benefit of exemption. He also submits that the logic in this circular is that where a sub-contractor renders service through the main contractor to a clie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Authority that merely because the services were rendered through main contractor and the bills were raised in the name of the main contractor, the nature of the service would automatically become one of the services to the main contractor and not to University of Lucknow. We have gone through the work order which shows clearly that a work given by the main contractor to the Appellant was in relation to a construction at University of Lucknow. Although the CBEC Circular (supra) cited by the learned Advocate is in a different context, the logic applies to other cases as well. As long as the service is rendered to a client, the taxability has to be decided accordingly regardless of whether the service was rendered directly by the main contractor or through a subcontractor or through a sub-sub-contractor. Accordingly, we find that the Appellant is not liable to pay service tax as he has already paid the same and he is entitled to refund under Section 102 of the Finance Act, 1994. 8. We also find that the issue is no more res integra and is squarely covered by the judgement of Hon'ble Supreme Court in the case of Commissioner, Customs Central Excise & Service Tax, Patna vs. M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation Notification was, therefore, introduced which expanded the definition of "governmental authority" and widened the exemption base for service tax to be provided even to an authority or a board or any other body, set up by an Act of Parliament or a State Legislature without the condition of having been established with 90% or more participation by way of equity or control by Government to carry out any function entrusted to a municipality under Article 243W of the Constitution. 16. While the aforesaid interpretation of amended clause 2(s) has been upheld by the Patna High Court, the Appellants have countered the same by submitting that the amended definition of "governmental authority" as in clause 2(s) should be interpreted in a manner so as to make the long line under clause 2(s) applicable to both sub-clause (i) and sub-clause (ii). In other words, as per the Appellants, to qualify as a "governmental authority" under clause 2(s)(i), such authority, board or body must not only be a statutory authority set up by an Act of Parliament or a State Legislature but must also have 90% or more participation of the Government by way of equity or control to carry out any like functi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t does not waste its breath unnecessarily. Just as Parliament is not expected to use unnecessary expressions, Parliament is also not expected to express itself unnecessarily. Even as Parliament does not use any word without meaning something, Parliament does not legislate where no legislation is called for. Parliament cannot be assumed to legislate for the sake of legislation; nor can it be assumed to make pointless legislation. Parliament does not indulge in legislation merely to state what it is unnecessary to state or to do what is already validly done. Parliament may not be assumed to legislate unnecessarily." 22. Having noticed some of the precedents in the field of interpretation of statutes, we now move on to a little bit of English grammar. The word "or" as well as the word "and" is a conjunction; and it is well known that a conjunction is used to join words, phrases, or clauses. On how the conjunctions "or" and "and" are to be read, guidance could be drawn from authoritative texts and judicial decisions. As per Justice G.P. Singh‟s Principles of Statutory Interpretation, the word "or" is normally disjunctive while the word "and" is normally conjunctive. In English ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it should be, but to make it what the legislature intended it to be." 24. In the present case, the word "or" between sub-clauses (i) and (ii) indicates the independent and disjunctive nature of sub-clause (i), meaning thereby that "or" used after sub-clause (i) cannot be interpreted as "and" so as to tie it with the condition enumerated in the long line of clause 2(s) which is applicable only to sub-clause (ii). 25. Applying a different lens, let us test the worth of Ms. Bagchi‟s submission in the light of the punctuations in clause 2(s). It has been held by a Bench of nine Hon‟ble Judges of this Court in Kantaru Rajeevaru v. Indian Young Lawyers Association & Ors. [(2020) 9 SCC 121, para 18] that when a provision is carefully punctuated and there is doubt about its meaning, weight should undoubtedly be given to the punctuation; however, though a punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element and cannot be allowed to control the plain meaning. While so observing, this Court considered several decisions as well as the punctuation comma in the relevant provision of the Supreme Court Rules, 2013. 26. What f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (ii); and, if the conjunction „or‟ is to be read as „and‟, meaning thereby that the portion "with 90% ... Constitution" has to be read as qualifying both sub-clauses (i) and (ii), then the intention of redefining "governmental authority" would certainly be defeated. As discussed earlier, the purpose for which "governmental authority" was re-defined must have been to make it workable. We cannot, therefore, resort to a construction that would allow subsistence of the unworkability factor. Assuming what Ms. Bagchi contended is right, it was incumbent for the appellants to bring to our notice, if not by way of pleading, but at least with reference to the relevant statutes, which of the particular authorities/boards/bodies are created by legislation - Central or State - "with 90% or more participation by way of equity or control by Government". Each word in the definition clause has to be given some meaning and merely because promoting educational aspects is one of the functions of a municipality in terms of Article 243W of the Constitution read with Schedule XII appended thereto is no valid argument unless equity or control by the Government, to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he exemption to include vast number of statutory bodies; therefore, unfairly burdening the exchequer. We observe that the authority having the competence to issue a notification completed its job by re-defining "governmental authority" and now it is a task entrusted to the courts to interpret the law. It is, at this juncture, important to notice the law laid down by this Court, speaking through Hon‟ble O. Chinnappa Reddy, J. in Girdhari Lal & Sons v. Balbir Nath Mathur [(1986) 2 SCC 237]. The position of law was affirmed in the following terms : "6. Where different interpretations are likely to be put on words and a question arises what an individual meant when he used certain words, he may be asked to explain himself and he may do so and say that he meant one thing and not the other. But if it is the legislature that has expressed itself by making the laws and difficulties arise in interpreting what the legislature has said, a legislature cannot be asked to sit to resolve those difficulties. The legislatures, unlike individuals, cannot come forward to explain themselves as often as difficulties of interpretation arise. So the task of interpreting the laws by finding out w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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