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2023 (2) TMI 1175
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....se, Belapur in which the appellant, M/s Konkan Railway Corporation Ltd, has been subjected to tax liability of Rs. 15,27,59,160/- under section 73 of Finance Act, 1994, along with applicable interest under section 75 of Finance Act, 1994, and imposed with penalty under section 78 of Finance Act, 1994. 2. The demand was raised in relation to payment of Rs. 2,58,24,30,000 and Rs. 1,70,00,000/- received in advance by the appellant between April 2015 and June 2017 from M/s National Thermal Power Corporation Limited in accordance with contract for 'construction and commissioning of railway sliding and signaling telecommunication systems including associated electrical and mechanical instruments' for facilitating handling of coal at the Kudgi ....
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....he appellant, the issue stands settled by several decisions of the Tribunal commencing with Afcons Infrastructure Ltd v. Commissioner of Central Excise, Mumbai - II [2015 (38) STR 194 (Tri.Mumbai)] which held that '.....exclusion of 'railways' from commercial and industrial construction service,'. in section 65(25b) of Finance Act, 1994 excluded Delhi Metro Rail Corporation Ltd from taxability under section 65(105)(zzp) of Finance Act, 1994. 4. It is also contended that the same issue had come up before the Tribunal in SMS Infrastructure Ltd v. Commissioner of Central Excise & Customs, Nagpur [2017 (47) STR 17 (Tri.-Mumbai)] which relied upon other decisions to conclude that '8. Learned Authorised Representative places rel....
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....19 (27) GSTL 549 (Tri.-Hyd.)], had held that exemption from tax, either as provider of 'commercial or industrial construction service' or of 'works contract service', was available. The decision of the Tribunal in Hindustan Construction Company Ltd v. Commissioner of Service Tax, Mumbai - VII [2021 (44) GSTL 369 (Tri.-Mumbai)] and in NMC Industries Pvt Ltd v. Commissioner of Service Tax-II, Mumbai [2020 (43) GSTL 551 (Tri.-Mumbai)] were also cited. 6. Learned Authorised Representative submits that the decision of the 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 gene....
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....e. We do not wish to dilate further on this. 8. Entitlement of every sort of railways to the exemption provided, either by exclusion from the definition of 'taxable service' in the 'pre-negative list' regime or by specific exemption in the 'negative list' regime has been dealt with in several decisions of the Tribunal. While addressing the issue of 'commercial consideration' being the bench mark for determining eligibility for exclusion/exemption, the Tribunal, in re Hindustan 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 a....
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....r the Ministry of Railways is part of the Government of India and not on commercial basis. Therefore, Indian Railways cannot be compared or equated with MMO/DMRC, a Company formed under the Companies Act and is committed to run purely on commercial lines even if it is fully owned by the Government.... "Railway" in the Indian Context is popularly known as "Indian Railways" and is more appropriately understood as Railways operated under the Indian Railways Act especially for the purpose of 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 operation....
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.... Act, 1994. It is also not correct to contend that the coverage of the statute governing Railways is limited to Government Railways; no such distinction is drawn except for the purposes of jurisdiction of the railway authorities specified therein for the governance of the Railways belonging to the Government. 8. In the absence of any qualification for the 'railway' incorporated in the exclusion component of the taxable service, any railway, irrespective of ownership, 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....