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2016 (12) TMI 537 - AT - Service TaxRefund claim - Commercial or Industrial Construction Service u/s 65(30a)(b) - Assesse undertook civil construction of viaduct and stations of Delhi Metro Railway Project - Revenue was of the view that the assesse were liable to discharge service tax on the activity - Held that - there is no dispute as to the fact that contract which was awarded to appellant is a turnkey contract for completing the project of DMRC. We find strong force in the contention raised by the learned Counsel that an identical contract for civil contract awarded by DMRC to Afcons infrastructure Ltd. 2013 (8) TMI 530 - CESTAT MUMBAI which was sought to be tax after vivisection said contract by the department. The said Afcons infrastructure Ltd. aggrieved by the adjudicating authority s order confirming the demand, was in appeal before the Tribunal which was disposed of by the Bench - Since the issue involved in the case is in respect of very same DMRC but a construction company for civil contract. As such contract cannot be vivisected, the impugned order is to be held as unsustainable. Appeal allowed - decided in favor of appellant-assessee.
Issues:
Refund claim rejection based on Service Tax payment on invoices to a third party; Vivisection of turnkey contract for Service Tax levy; Interpretation of Commercial and Industrial Construction Service definition; Applicability of relevant case laws; Legislative intent on Service Tax exemption for Railways. Refund Claim Rejection: The appeal challenged the rejection of a refund claim for inadvertently paying Service Tax on invoices issued to a third party. The lower authorities rejected the claim, stating that the Service Tax was not payable as the contract was a turnkey one and could not be vivisected. The adjudicating authority relied on a Supreme Court judgment to support this decision. Vivisection of Turnkey Contract: The Tribunal analyzed the nature of the contract awarded to the appellant, confirming it as a turnkey contract for a project. The Tribunal referred to a similar case involving Afcons infrastructure Ltd. where the contract was sought to be taxed after vivisection by the department. The Tribunal emphasized that the contract in question could not be vivisected for Service Tax purposes. Interpretation of Commercial and Industrial Construction Service Definition: The Tribunal examined the definition of Commercial and Industrial Construction Service, emphasizing the broad interpretation of the term "railways" to include all types of railway lines. It rejected the Revenue's reliance on certain decisions and highlighted that the law must be interpreted based on explicit wording, not government notings. The Tribunal also clarified the inapplicability of a specific definition to the relevant period. Applicability of Relevant Case Laws: The Tribunal cited relevant judgments, including one by the Hon'ble High Court of Delhi on the status of Delhi Metro Rail as a Government Railway. It also referred to a Supreme Court case emphasizing that in works contracts, there should be no vivisection for tax calculation under different service categories. Legislative Intent on Service Tax Exemption for Railways: The Tribunal discussed the legislative intent behind a specific Service Tax exemption related to construction works pertaining to Railways, including monorail or metro. It highlighted the exemption's indication of not taxing construction work related to Railways and emphasized the exclusion of railways from commercial and industrial construction service. In conclusion, the Tribunal found the impugned order unsustainable and set it aside, allowing the appeal with consequential relief. The decision was based on various factors, including the nature of the contract, relevant case laws, and legislative intent regarding Service Tax exemptions for Railways.
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