TaxTMI 
TaxTMI 
TaxTMI 
2024 (11) TMI 1529
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....BER (TECHNICAL) Corp. Limited, 11th Floor, Shalimar Titanium Building, Vibhuti Khand, Gomti Nagar Lucknow in light of amendment made vide Notification No 09/2016 dated 01.03.2016. 2.1 The respondent is engaged in providing Work Contract services. 2.2 Respondent filed refund claim received by the jurisdictional officer on 11.11.2016 for Rs 80,64,728/- under section 102 of the Finance Act, 1994. 2.3 After scrutiny of the refund claim a show cause notice dated 23.01.2017 was issued to the respondent asking them to show cause as to why their refund claim should not be rejected. 2.4 The show cause notice was adjudicated as per order in original referred in para 1 above. The refund claim was rejected on the following grounds. (i) The respondent had not provided any documentary evidence showing that the amount of Service Tax paid was in relation to the amount received by them against specific G.O. (ii) The respondent had submitted copies of work contracts made between them and Ghaziabad Development Authority which shows that Ghaziabad Development Authority is a body corporate. In Notification No. 25/2012-ST dated 20.06.2012, entry no.-12, word "body corporate....
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....idential complex predominantly meant for self-use or the use of their employees or other persons specified in the Explanation 1 to clause (44) of section 65 B of the said Act; under a contract which had been entered into prior to the 1st March, 2015 and on which appropriate stamp duty, where applicable, had been paid prior to such date: Provided that nothing contained in this entry shall apply on or after the 1st April,2020." Further, the essential condition of the above mentioned exemption notification, is that the service was to be provided to the Government, a local authority or a governmental authority, but in the instant case the Ghaziabad Development Authority was not either the Government, a local authority or a governmental authority rather it is a body corporate. Hence, the respondent is not eligible for exemption from Service Tax in terms of Notification No.09/2016-ST dated 01.03.2016, vide which the Govt. of India had made further amendment in the Notification No.25/2012-ST dated 20.06.2012 ⮚ The Commissioner (Appeals) has erred while admitting the submission made by the party regarding allegation not made in Show Cause Notice, as the Sh....
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....ssued for not filing appeal below the monetary limit, o person, being a party in appeal, shall contend that the Department has acquiesced in the decision on the disputed issue by not fling appeal. In effect the decisions / judgments accepted for reasons of monetary limit do not have precedent value." 3.1 We have heard Shri A K Choudhary, Authorized Representative for the revenue and Shri Dharmendra Srivastava for the respondent. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Impugned order records the findings as follows: "5. I have gone through the case record. From the record it is apparent that the GDA has been established under UP Urban Planning and Development Act 1973. Hence, the same is fully owned and controlled by the UP Government. Further, it carries out functions entrusted to a municipality under Article 243W of the Constitution. Creating public amenities like parking lot is one such function. Hence GDA satisfies all the conditions of 'governmental authority' as defined under para 2 of the Notification No. 25/2012-ST. 6. Regarding commercial nature of the mult....
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....e applicable, had been paid before that date. (2) Refund shall be made of all such service tax which has been collected but which would not have been so collected had sub-section (1) been in force at all material times. (3) Notwithstanding anything contained in this Chapter, an application for the claim of refund of service tax shall be made within a period of six months from the date on which the Finance Bill, 2016 receives the assent of the President." 4.4 J S TRU has vide his D.O.F. No.334/8/2016-TRU dated 29.02.2016 clarified in respect of the same by stating as follows: "L. Restoration of certain exemptions withdrawn last year for projects, contracts in respect of which were entered into before withdrawal of the exemption. (a) Exemption from Service Tax on services provided to the Government, a local authority or a governmental authority by way of construction, erection, etc. of - (i) a civil structure or any other original works meant predominantly for use other than for commerce, industry, or any other business or profession; (ii) a structure meant predominantly for use as (i) an educational, (ii) a clinical, or (iii) ....
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....n the impugned order in this respect cannot be disputed. 4.6 In case of Shapoorji Pallonji & Company Pvt. Ltd [2023 (79) G.S.T.L. 145 (S.C.)] Hon'ble Supreme Court has interpreted the phrase "governmental authority" used in the said Notification 25/2012-ST and observed as follows: "14. Before we commence our analysis, it would be apt to juxtapose the relevant clauses from the Exemption Notification and the Clarification Notification for facility of appreciation : EXEMPTION NOTIFICATION CLARIFICATION NOTIFICATION 2(s) "governmental authority" means a board, or an authority or any other body established with 90% or more participation by way of equity or control by Government and set up by an Act of the Parliament or a State Legislature to carry out any function entrusted to a municipality under article 243W of the Constitution; 2(s) "governmental authority" means an authority or a board or any other body; (i) Set up by an Act of Parliament or a State Legislature; or (ii) established by Government, with 90% or more participation by way of equity or control, to carry out any function entrusted to a municipality under article 243W of the Constit....
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....of equity or control to carry out any like function that a municipality under Article 243W of the Constitution is entrusted to discharge. 17. We have no hesitation to disagree with the latter interpretation sought to be placed by the appellants, for the reasons that follow. 18. In Superintendent & Legal Remembrancer, State of West Bengal v. Corporation of Calcutta [(1967) 2 SCR 170], a nine-judge Bench of this Court, relying upon Craies‟ On Statute Law (6th edn.), stated that where the language of a statute is clear, the words are in themselves precise and unambiguous, and a literal reading does not lead to absurd construction, the necessity for employing rules of interpretation disappears and reaches its vanishing point. 19. This Court in Union of India & Ors. v. Ind-Swift Laboratories Ltd. [(2011) 4 SCC 635 = 2011 (265) E.L.T. 3 (S.C.) = [2011] 30 STT 461 (SC)], held that harmonious construction is required to be given to a provision only when it is shrouded in ambiguity and lacks clarity, rather than when it is unequivocally clear and unambiguous. 20. What is plain and ambiguous from a bare reading of a provision under consideration must....
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....ion, the word "or" is normally disjunctive while the word "and" is normally conjunctive. In English law, the position is clear as crystal, as explained by Lord Scrutton in Green v. Premier Glynrhonwy Slate Co. [(1928) 1 K.B. 561, page 569] that one does not read "or" as "and" in a statute unless one is obliged, because "or" does not generally mean "and" and "and" does not generally mean "or". 23. When the meaning of the provision in question is clear and unambiguous by the usage of "or" in clause 2(s), there remains no force in the submission of Ms. Bagchi that "or" should be interpreted as "and". In our opinion, the word "or" employed in clause 2(s) manifests the legislative intent of prescribing an alternative. Going by the golden rule of interpretation that words should be read in their ordinary, natural, and grammatical meaning, the word "or" in clause 2(s) clearly appears to us to have been used to reflect the ordinary and normal sense, that is to denote an alternative, giving a choice; and, we cannot assign it a different meaning unless it leads to vagueness or makes clause 2(s) absolutely unworkable. We are fortified in our view by the decision of this Court in Sri ....
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.... well as the punctuation comma in the relevant provision of the Supreme Court Rules, 2013. 26. What follows is that punctuation, though a minor element, may be resorted to for the purpose of construction. 27. In the present case, the use of a semicolon is not a trivial matter but a deliberate inclusion with a clear intention to differentiate it from sub-clause (ii). Further, it can be observed upon a plain and literal reading of clause 2(s) that while there is a semicolon after sub-clause (i), sub-clause (ii) closes with a comma. This essentially supports the only possible construction that the use of a comma after subclause (ii) relates it with the long line provided after that and, by no stretch of imagination, the application of the long line can be extended to sub-clause (i), the scope of which ends with the semicolon. We are, therefore, of the opinion that the long line of clause 2(s) governs only subclause (ii) and not sub-clause (i) because of the simple reason that the introduction of semicolon after sub-clause (i), followed by the word "or", has established it as an independent category, thereby making it distinct from subclause (ii). If the author wanted....
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....alid argument unless equity or control by the Government, to the extent of 90%, is shown to exist qua the relevant authority/board/body. Incidentally, neither is there any indication in the petition nor has Ms. Bagchi been able to disclose the identity of any such authority/board/other body which is covered by her argument. No such identified authority/board/body covered by the aforesaid construction of the definition of "governmental authority" in clause 2(s) of the Clarification Notification, which the appellants appeal to us to accept, having been brought to our notice, we are unable to find any fault in the decisions of the Patna High Court and the Orissa High Court extending the benefit of the Exemption Notification to the educational institutions, and a fortiori, to SPCL. 29. We need not draw guidance from any of the decisions cited by Ms. Bagchi, except one, on the question of construction of the relevant clause because none of those decisions had the occasion to deal with the issue emanating from the Exemption Notification and the Clarification Notification that we are tasked to consider. 30. Ms. Bagchi heavily relied on the decision of a five judge Bench ....
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....complete in all respect should be returned to the claimant for being filed after providing for the short comings. The submission made in the appeal goes contrary to the said clarification. Be that as it is we do not find any merits in submission made by the appellant revenue for the reason that no evidence has been adduced even at the stage of appeal that the said multi level parking constructed at Vaishali Metro Station has been used for the purpose other than specified in the Section 102 or Notification No 25/2012-ST. Commissioner has relied upon the decision in the case of Respondent [Final Order No 70039/2019 dated 08.01.2019] to conclude that the such parking facilities fall within the exempted category. The relevant text of the CESTAT order is reproduced below:- "2. ...... Secondly, he has observed that construction of the multi story parking for Lucknow Development Authority cannot be held to be commercial activity. Lucknow Development Authority was established under the Uttar Pradesh Urban Planning and Development Act, 1973 and is responsible for planned development of Lucknow city. It is entrusted with the responsibility of providing facilities for public amenity ....