2016 (7) TMI 784 - HC - Service Tax

Demand of service tax - (i) repair and maintenance of roads; (ii) repair and maintenance of airport runways; (iii) site formation activity undertaken at roads. - period from 2005-06 to 2009-10. - It was submitted that, commercial or industrial construction service was introduced as taxable service under the head construction service with effect from 10th September, 2004. The same service was renamed as commercial or industrial construction service with effect from 16th June, 2005. Though it refers to repair, alteration, renovation etc., but that does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels or dams. If that is excluded from commercial or industrial construction, then, the same cannot be taxed under another general category of management, maintenance or repair service. Held that - the definitions are for the purpose of understanding the taxable service provided or to be provided by a stock-broker, to a policy holder by an insurer, by an advertising agency, by a courier agency etc. and when it came to service in relation to management, maintenance or repair, the legislature was free to tax it. Merely because repairs of roads and airports is specifically excluded from the definition of commercial or industrial construction it could still be brought in under the category of management, maintenance or repair service . Ultimately, management, maintenance or repair is defined to mean any service provided by any person under a contract or an agreement for a manufacturer or any person authorised by him in relation to management of properties, whether immovable or not, maintenance or repair of properties, whether immovable or not or maintenance or repair including reconditioning on restoration, or servicing of any goods, excluding a motor vehicle. Eventually, in inserting and incorporating definitions so as to understand taxable service if management, maintenance or repair is taken to be a distinct service and that aspect is excluded from the definition of the term commercial or industrial construction service , then, it is not a case of redundancy or rendering any provision nugatory, but being specific and clear. Once the matter is understood in this manner, then, the submission of Mr. Sridharan, based on the judgment of the Hon ble Supreme Court of India in the case of Tahsildar Singh (supra) cannot be accepted. Mr. Sridharan forgets that we are not construing as to whether airport is covered by section 98 of the Finance Act, 1994. We are concerned here with appellant s specific case. Some of the services provided included extension, strengthening of runways, taxi ways, apron taxi ways. We are concerned with these services. Whether these services are falling in the category of maintenance and repairs of road is the question before us. We do not think that we are required to find out whether definition of airport itself includes runways and even if they are so included, whether those are contemplated by section 98. Section 98 refers to building services relating to management etc. of non commercial Government buildings. We are not construing the ambit and scope of such services. We are concerned with the excision from the definition of this service the maintenance of road, repair to runway etc. That exclusion is clear. As a result of the above discussion, we do not find any merit in the appeal. Once the order impugned in the writ petition is a consequential one and follows the tribunal s order under appeal and is delivered and pronounced on remand, then, for the very reasons, which we have assigned for upholding the conclusion of the tribunal would cover the outcome of the writ petition. If the tribunal s order dated 29th May, 2013 is upheld, then, this order also must prevail. Consequently, the writ petition must also fail. Rule is discharged. Decided against the appellant.

Issues Involved:
1. Classification of services provided by the petitioner.
2. Applicability of service tax on repair and maintenance of roads and airport runways.
3. Retrospective exemption under sections 97 and 98 of the Finance Act, 1994.
4. Invocation of the extended period of limitation.
5. Imposition of penalties under sections 76, 77, and 78 of the Finance Act, 1994.

Detailed Analysis:

1. Classification of Services Provided by the Petitioner:
The petitioner, engaged in the construction and maintenance of roads and runways, was issued a show cause notice to classify its services under "Management, Maintenance or Repair," "Commercial and Industrial Construction," and "Site Formation and Excavation Clearance." The petitioner argued that their activities should be excluded from service tax under these categories, citing specific exemptions and definitions within the Finance Act, 1994. However, the adjudicating authority and the appellate tribunal found that the petitioner’s activities did fall under these taxable categories.

2. Applicability of Service Tax on Repair and Maintenance of Roads and Airport Runways:
The petitioner contended that repair and maintenance of roads were exempt from service tax under Notification No. 24/2009-ST and section 97 of the Finance Act, 1994, which provided retrospective exemption. The tribunal agreed that the petitioner was eligible for exemption for road maintenance but held that runways did not qualify as roads and thus were taxable. The court upheld this view, distinguishing between roads and runways based on their common parlance and commercial usage.

3. Retrospective Exemption under Sections 97 and 98 of the Finance Act, 1994:
Section 97 provided retrospective exemption for the management, maintenance, or repair of roads, while section 98 provided the same for non-commercial government buildings. The tribunal and the court found that these exemptions did not extend to airport runways. The court emphasized that the legislature’s intent was clear in excluding runways from these exemptions, and the petitioner’s argument that runways should be considered roads was not accepted.

4. Invocation of the Extended Period of Limitation:
The petitioner argued that the extended period of limitation under section 73(1) of the Finance Act, 1994, could not be invoked as there was no suppression of facts. The adjudicating authority and the tribunal found that the petitioner had not disclosed the correct nature of its activities, which were camouflaged in its balance sheets. Therefore, the invocation of the extended period was justified.

5. Imposition of Penalties under Sections 76, 77, and 78 of the Finance Act, 1994:
The petitioner contended that penalties under sections 76 and 78 could not be simultaneously imposed. However, the adjudicating authority imposed penalties, and the tribunal upheld this decision. The court found no reason to interfere with the imposition of penalties, noting that the petitioner had not provided sufficient evidence to warrant their waiver.

Conclusion:
The court upheld the tribunal’s decision, affirming that the petitioner’s activities were taxable under the specified categories and that the exemptions under sections 97 and 98 did not apply to airport runways. The invocation of the extended period of limitation and the imposition of penalties were also upheld. The writ petition was dismissed, and the rule was discharged with no order as to costs.

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