TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 1228
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....ork of railways. So the appellant entered into an agreement for procurement of coal from South East Central Coalfields Limited, Chhattisgarh. The coal was to be transported through railway upto the plant of the appellant. However, as the last station was Sarai Banjara railway station in Punjab, which is located at considerable distance from the Power Plant and there was no direct linkage up to the power plant, the appellant was required to construct siding for transportation of coal from Sarai Banjara railway station to Thermal Power Plant. As the construction of siding involved various alterations and modification to the existing Sarai Banjara railway station and such construction could not have been undertaken without the mandatory approvals, permits and supervision of the Railways. Therefore, the appellant constructed the siding under the mandatory supervision of Railways. For that activity, the appellant is required to make payment to the Railways in relation to approval and supervision provided by the railways. An enquiry was conducted by the Revenue with regard to various payments made to Indian Railways in relation to mandatory supervision of the Railways during the period 0....
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.... paid by the appellant to Railways was Rs. 29,92,50,000/- and out of which Rs. 17,35,14,200/- has been made during the impugned period. Therefore, he prayed that the impugned order is to be set-aside. 4. On the other hand, ld. AR opposed the contention of the ld. Counsel on the ground that construction or supervision of private railway sidings like the subject one is not a statutory function of the Indian Railways. The Departmental/ Codal charges are collected on the basis of their being provided for in the Engineering Code. Code 1137 specifies that when a work is undertaken by the engineering department of the Railways for outside parties, departmental charges should be levied to cover the cost of tools and plant and of establishment supervision and prescribe the rates thereof which are as mentioned in the Freight Marketing Circular No. 1 of 2012. Therefore, the charges are not as per any statute but are based on letters issued by the Railway Board and empower an officer of the Railways to remit them in certain circumstances. He also relied on the decision of Hon'ble High Court of Delhi in Writ Petition (Civil) 993/2012 and CM No. 2178-79/2012 in the matter of UOI vs. Competi....
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....tion the opening of a railway under Section 21 as such or subject to such conditions as may be considered necessary by it for the safety of the public. 23. Sections 21 and 22 to apply to the opening of certain works. - The provisions of Section 21 and 22 shall apply to the opening of the following works if they form part of, or are directly connected with, a railway used for the public carriage of passengers and have been constructed subsequent to the giving of a report by the Commissioner under Section 22, namely:- (a) opening of additional lines of railway and deviation lines; (b) opening of stations, junctions and level crossings; (c) re-modelling of yards and re-building of bridges; (d) introduction of electric traction; and (e) any alteration or reconstruction materially affecting the structural character of any work to which the provisions of sections 21 and 22 apply or are extended by this Section. " On going through the above provisions, we find that Railways includes siding also for transportation of public carriage of passengers or goods. Admittedly, in the case in hand, the siding has been required to be constructed for transportation of coal upto the plant ....
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....es 1. Departmental charges: (Inclusive of cost of tools & plant and establishment supervision) Railway 12 ½% % of cost of project excluding cost of OHE and S&T Works Party 6¼% Approved Consultant 4% 2. Departmental charges for OHE and S&T Works (Inclusive of cost of tools & plant and establishment supervision) Railway 12 ½% % of cost of OHE and S&T Works for Railway's mandatory supervision Party 6¼% Approved Consultant 6¼% 3. D&G Charges: (For work charged establishment and other than establishment supervision) Railway As per actual, if any [Ref: para-1829E] Party Approved Consultant As per the said Circular, for construction of railway siding, mandatory deposits have to be made by the appellant as per the chart extracted in Para 3 of the above policy Circular. 8. In the case in hand, the appellant themselves have constructed the siding under the supervision of the Railways. Therefore, they are required to make payment of mandatory departmental chares, cost of OHE work and D&G charges. It is not disputed that all these charges have been paid by the appellant for various approvals and supervision....
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....text otherwise requires, - (1) "actionable claim" shall have the meaning assigned to it in Section 3 of the Transfer of Property Act, 1882; ..... (49) " support services" means infrastructural, operational, administrative, logistic, marketing or any other support of any kind comprising functions that entities carry out in ordinary course of operations themselves but may obtain as services by outsourcing from others for any reason whatsoever and shall include advertisement and promotion, construction or works contract, renting of immovable property, security, testing and analysis;" Admittedly, as per Section 65B (49) of Finance Act, 1994, the approvals and supervision done by the Railways cannot be done by any other party or the appellant. We further take note of the fact that in the case of Commissioner of Cus. & CE, Bhopal vs. State of Madhya Pradesh, the Hon'ble High Court has observed as under :- "7. From the aforesaid, it is clear that 'service tax' is a value added tax and the service provided for which the duty is payable is nothing but an activity undertaken by a person based on his performance and skill and is certain service provided by the service provider to....