2019 (4) TMI 26

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....involved in both the appeals are identical, though the impugned orders are different. 2. We have heard ld. A.R. Shri Vivek Pandey appearing for the Revenue and ld. Advocate Shri Vivek Sharma appearing for the respondents. 3. As per facts on record, the respondents have been placed with orders by Ministry of Railways to lay down the rail tracks, on which the Railway Ministry runs the wagons. The cost of laying down of Railways is being given to the respondents by the Railway Ministry, on revenue sharing basis, based upon the agreement entered into between the two. Revenue entertained a view that laying down of the rail lines, on which Railways run their wagons amounts to providing infrastructure support service, on which the respondent....

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....he running of the railways. As per the new policy, the cost of laying down of railways lines, instead of being borne by the Government of India, is to be borne by the private parties. The Railways operates the said railways and after recovering all the operation cost, pays balance amount to the investors. Admittedly, the payment is the cost of investment made by the private parties. As such, it cannot be said that such consideration paid by the railways is towards service of providing infrastructural facilities to the railways. In fact as rightly contended by the appellants, the railways is providing them as service by agreeing to operate the railways at Adipur Mundra Port. As condition of providing such service, the railways demanded inves....

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....o. The ratio of the above decision of the Tribunal is fully applicable to the facts of the present case, inasmuch as, they are identical. As such, we find no reasons to take a different view than the one taken in the case of Mundra Port and Revenue's appeal cannot be allowed on the sole ground of challenging the said decision before the Hon'ble Supreme Court, in the absence of any stay. As such, we find no merits in the Revenue's appeal. 8. Apart from the merits of the case, we also note that the adjudicating authority has dropped the demand on the ground of limitation also by observing as under:- "63. Further, I find that department has proposed invocation of extended period on the ground that the Noticee had not taken service tax re....