TaxTMI 
TaxTMI 
2020 (3) TMI 319
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....7,337/- under section 73 of Finance Act, 1994, along with interest thereon under section 75 of Finance Act, 1994, besides imposing penalty of like amount under section 78 of Finance Act, 1994, is the non-consideration of their claim of exclusion from taxability as provider of 'works contract service' and 'commercial and industrial construction service' for the period from 2009-10 to 2012-13. 2. It is common ground that the demand pertains to five projects undertaken by the appellant which, admittedly, relate to enabling of locomotives to travel over specified stretches. Of these projects, it has been held in the impugned order that, while the construction of a railway siding track works at Dronagiri for M/s Hind Terminals Pvt Ltd in 2009-1....
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....Authorised Representative submitted that, if the applicability of this decision is affirmed, the adjudicating authority should be afforded an opportunity to examine the contracts once again in fresh proceedings. 3. The Hon'ble Supreme Court, in Commissioner of Central Excise & Customs, Kerala v. Larsen & Toubro Ltd [2015-TIOL-187-SC-ST], has distinguished the components in the second leg of the elaboration of 'works contract' from identical entries in section 65(105) that existed prior to incorporation of tax on 'works contract service' to restrict the taxability under the earlier provisions to services simpliciter. It is difficult to conceive of the impugned projects having been rendered sans materials and, thereby, failure to evaluate fo....
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.... the exclusion from tax, under either one of the entries resorted to in the impugned order, claimed as available to railway construction. The submissions made by both sides on this aspect alone shall be considered by us. It is, again, not in dispute that the projects pertained to 'railway construction'; however, according to the adjudicating authority, who placed reliance on the definitional distinction between 'government railways' and 'non-government railways' in Railway Act, 1989 and through circuitous reasoning derived from selective rejection of the lexical meanings of some of the expressions in the definition, the exclusions intended by Parliament could not be extended to private operations. 5. According to Learned Counsel for the ap....
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....e and is also used for commerce. 4.2 He also refers to para 3.13 wherein reference has been made to Section 66D(o) of the Finance Act, 1994 effective from 1-7-2012 where in respect of service of transportation of passengers by railways, distinction has been made among Metro, Monorail or Tramway which also would indicate that Monorail and Tramways are different from railways as commonly understood. xxxxxx 5.1 The definition of 'Commercial and Industrial Construction Service' as provided in Section 65(25b) excludes such activities relating to roads, ports, railways, dams, bridges, tunnels etc. There is no distinction between a monorail or metro rail or any other kind of rail and, therefore, the term 'railways' used therein has to be give....
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.... in Rajendra Singh Bhamboo v. Commissioner of Central Excise & Service Tax, Jaipur-I [2019 (22) GSTL 278 (Tri-Del)] to the effect that '7. On perusal of the above definition, it would reveal that construction of roads is excluded from the purview of such taxable service. The definition of taxable service does not specify the type of roads, whether private or public for the purpose of consideration of such exclusion clause. Since the definition is specific to service provided in respect of road only, in our considered view, it cannot be interpreted that only construction of public roads should get the benefit of exclusion provided in such definition clause. In other words, irrespective of the purpose of construction of the road, whether fo....
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....e definitions contained therein cannot have application de hors the operative provisions of such statutes. The distinction between 'government railways' and 'non-government railways', that is the pivot of the conclusions in the impugned order, has been embodied in Railway Act, 1989 as that is the statutory basis for the structure and composition of railway administration. To read down any distinction, other than that as enacted, would be a foray into impermissible, and unknown, territory. 8. The 'constructions' excluded from taxability under both the entries in section 65(105) of Finance Act, 1994 are, plainly, unqualified. The legislative intent, therefore, cannot be circumscribed by encroachment, or restrictive interpretation, ventured u....