2011 (7) TMI 888 - AT - Service Tax

Whether the activity carried out by the appellant is covered under the category of Construction of Road or Maintenance and Repair - Condonation of delay - whether the activity carried out by the appellant is covered under the category of Construction of Road or Maintenance and Repair - The respondent in para 2 stated that time for filing cross-objection expired on 12-10-2010 since notice for such filing was received on 28-10-2010 - condonation of delay was filed without any affidavit. Therefore COD application is rejected. There is no cogent evidence to impeach findings of appellate authority. Learned D.R. relies on pages 27 & 28 of appeal folder for the proposition that Executive Engineer is not competent authority to issue the concerned certificate - Such as authority cannot be found to be incompetent to issue the certificate in question unless otherwise proved and evidence adduced by Revenue - Appeal is dismissed

Summary

Issues:
1. Whether the activity carried out by the appellant falls under "Construction of Road" or "Maintenance and Repair" category.
2. Validity of the certificate issued by the Executive Engineer.
3. Consideration of cross-objection as an appeal due to the unavailability of the consultant.
4. Condonation of delay for filing the cross-objection.
5. Merits of the case regarding the nature of the activity carried out by the respondent.

Analysis:

1. The primary issue in this case is to determine whether the appellant's activity is classified as "Construction of Road" or "Maintenance and Repair." The appellate authority considered the documents and work schedule to conclude that the repair and maintenance activities should not be exempted. However, the respondent argued in support of the appellate authority's decision.

2. The validity of the certificate issued by the Executive Engineer was questioned by the learned D.R., claiming the Executive Engineer lacked the competence to issue such a certificate. Despite the reliance on documents by the appellate authority, there was a lack of evidence to discredit the Executive Engineer's certificate, who is considered a competent authority in the field of engineering.

3. The respondent filed a cross-objection, treated as an appeal due to the unavailability of their consultant. However, the absence of new grounds in the cross-objection led to its dismissal, as it merely supported the first appellate order.

4. The issue of condonation of delay for filing the cross-objection was raised, but the lack of a cogent reason or affidavit supporting the delay resulted in the rejection of the condonation application. The cross-objection was deemed not eligible for consideration due to the absence of new grounds.

5. Regarding the nature of the activity carried out by the respondent, the Commissioner (Appeals) thoroughly examined the case and concluded that the construction of the road should not be taxed based on the facts and circumstances. The appellate authority's findings were upheld, emphasizing the lack of evidence to challenge the Executive Engineer's certificate and dismissing the Revenue's appeal due to no legal infirmity in the impugned order.

In conclusion, the Revenue's appeal was dismissed, the miscellaneous application for condonation of delay was rejected, and the cross-objection was also dismissed. The judgment highlighted the importance of proper examination of facts and legal considerations in determining the tax implications of construction and maintenance activities.