2013 (11) TMI 1359 - AT - Service Tax

Demand of service tax - Management, Maintenance and Repair Service and Commercial or Industrial Construction Service - Held that - construction of road does not require payment of service tax. The Revenue s only appeal is that construction of driveway cannot be equated with the construction of road in as much as such driveway was not for public utility purpose but the same was in connection with the petrol pump owned by the owner - Following decision of Commissioner of Service Tax, Ahmedabad Vs. Shilpa Constructions Pvt. Ltd. 2010 (6) TMI 175 - CESTAT, AHMEDABAD - Stay granted.

Summary

Issues:
1. Tax demand on management, maintenance, and repair service of roads for the period 2005-2009.
2. Tax demand on construction of new roads.

Analysis:

Issue 1: Tax demand on management, maintenance, and repair service of roads for the period 2005-2009:
The applicant was facing a tax demand of Rs.1,36,07,763/- for the period 2005-2009 on management, maintenance, and repair service, as well as commercial or industrial construction service related to roads. The applicant argued that no service tax should be levied on the management, maintenance, or repair of roads during the specified period as per Section 97 of the Finance Act, 1994. The applicant also highlighted that the definition of 'commercial or industrial construction service' does not cover services related to roads. The Tribunal examined the show-cause notice and noted that the demand of tax on management and repair of roads was not sustainable due to the provisions of Section 97 inserted by the Finance Bill, 2012. Consequently, the demand on this issue was found to be prima facie not sustainable.

Issue 2: Tax demand on construction of new roads:
Regarding the tax demand on the construction of new roads, the Tribunal referred to a previous case involving Shilpa Constructions where it was established that the construction of roads does not require the payment of service tax. The Tribunal emphasized that the value of construction of roads should be included in the service value only when there is no segregation between the construction activities. In the present case, the applicant argued that there were separate agreements for building construction and road laying, treating them as distinct activities. The Tribunal agreed with the applicant's position, stating that the issue had already been decided in favor of the applicant in a previous case. Consequently, the Tribunal granted a waiver of predeposit of tax, interest, and penalty, and stayed the recovery during the appeal's pendency, as the applicant had established a prima facie case for the waiver.

In conclusion, the Tribunal ruled in favor of the applicant on both issues, highlighting the inapplicability of service tax on management and repair of roads during the specified period and acknowledging the separation of activities in the construction of new roads, leading to the grant of a waiver of predeposit and stay on recovery during the appeal process.