AI Drafter 
TaxTMI 
TaxTMI 
2025 (3) TMI 384
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....nce Act, 1994. 2. The facts of the case are that during the period from 2007-08 to 2008-09, the appellant had undertaken contract for construction of approach road to the plant site of M/s. JUD Cements (P) Limited, Meghalaya. In the process of construction of approach road to the plant, the appellant also acquired some land as a 'pure agent' of the cement plant. 2.1. The Department initiated an investigation against the appellant on the allegation that the appellant had not obtained Service Tax Registration and had not discharged Service Tax on the taxable services rendered to M/s. JUD Cements (P) Ltd. On the basis of the investigation, a Show Cause Notice dated 19.10.2012 was issued and after due process, the said notice was adjudicated resulting in the impugned order, which is the subject matter of the present appeal. 3. The appellant has primarily made the following submissions: - a) for the year 2007-08: i. They have sold total value of machinery worth Rs.2,08,01,562/- to M/s. JUD Cements (P) Ltd., but in the impugned order, the ld. adjudicating authority considered only an amount of Rs.1,60,85,351/- and thus the additional amount of Rs.47,16,209/- is....
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.... 17/2005 ST Dt. 07.06.2005 'Site formation and clearance, excavation and earthmoving and demolition' and such other similar activities, referred to in sub-clause (zzza) of clause (105) of section 65 of the Finance Act, provided to any person by any other person in the course of construction of roads, airports, railways, transport terminals, bridges, tunnels, dams, ports or other ports, is exempt from the whole of service tax leviable thereon under section 66 of the said Finance Act, 1994. * The Ld. Commissioner failed to consider that construction of road whether public or private is not the criterion for getting the benefit under notification No.17/2005-ST dated June 7, 2005. The criterion for exemption is that the activity of construction of road should be taken on the basis of separate recognizable contract. The learned Commissioner failed to appreciate that from the invoices enclosed in the said notice, it is clear that the activity of road construction has been undertaken by a separate contract tax and hence is eligible for exemption from service tax. * The Ld. Commissioner erred in distinguishing the roads being public or private while examining the eligibil....
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....observe that this needs to be verified by the ld. adjudicating Authority and for that purpose, the issue needs to be remanded back to the adjudicating authority. 6.2. We also observe that the appellant claims to have received Rs.4,17,89,638/- in the year 2007-08 towards construction of road, which is specifically exempted from the purview of Service Tax. They have cited the Letter F.No.B1/6/2005-TRU dated July 27, 2005 in support of this contention. In support of the view that road construction is not liable to Service Tax, the appellant has also placed reliance on the decision in the case of M/s. Rajendra Singh Bhamboo vs Commissioner of Central Excise and Service Tax, Jaipur-I [Final Order No. 50968 of 2018 dated 13.03.2018 in Service Tax Appeal No. 55339 of 2013 - CESTAT, New Delhi] wherein while examining the definition of Commercial and Industrial Construction Service under Section 65(105)(zzq) of the Finance Act, 1994, the Bench held as under: "On perusal of the above definition, it would reveal that construction of roads is excluded from the preview of such taxable service. The definition of taxable service does not specify the type of roads, whether private or p....
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....earance, excavation and earthmoving and demolition' and such other similar activities, referred to in sub-clause (zzza) of clause (105) of section 65 of the Finance Act, provided to any person by any other person in the course of construction of roads, airports, railways, transport terminals, bridges, tunnels, dams, ports or other ports, is exempt from the whole of service tax leviable thereon under section 66 of the said Finance Act, 1994. However, we find that the Ld. Commissioner has not extended the benefit of the said notification on the ground that the road constructed is not for the use of general public. In this regard, we observe that construction of road being private or public is not the criterion for eligibility to the benefit under Notification No.17/2005-ST dated June 7, 2005. The criterion for exemption is that the activity of construction of road should be undertaken on the basis of a separate recognizable contract. The Ld. Commissioner failed to appreciate that from the invoices enclosed in the said notice, it is clear that the activity of road construction has been undertaken by a separate contract. We observe that the Ld. Commissioner erred in distinguishing the ....