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TMI Blog2016 (9) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... service. They are, primarily, contractors for infrastructure projects and the demands pertain to alleged non-payment of tax under Finance Act, 1994 by them. The first appeal is directed against order no. 09/ST/2010/C dated 29th October 2010 which has confirmed a total amount of Rs. 28,48,55,027/-as tax due besides interest and imposing penalties under section 76 and 78 of Finance Act, 1994. The second is directed against order no. 61/ST/2012/C dated 18th October 2012 which has confirmed a tax demand of Rs. 11,55,45,002/- along with interest besides imposing penalties under section 76 and 78 of Finance Act, 1994. 2. The first component of the first demand relates to rendering of 'erection, commissioning and installation service' ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed in relation to construction of railway sidings in both orders and the work related to mines in the first demand. It is contended that the work rendered to M/s MSRDCL was always claimed to be 'works contracts' which the adjudicating authority refused to accept and, according to him, the issue stands settled by the decision of the Hon'ble Supreme Court in Commissioner of Central Excise & Customs, Cochin v. Larsen & Toubro Ltd [2015 (39) STR 916 (SC)] . It is also contended that, in relation to services rendered to M/s MEPL, M/s VEPL and M/s CSEB, tax liability on the labour contract had been discharged at the appropriate time and that the cost of goods involved were, in accordance with section 67 of Finance Act, 1994, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to the mine, which Revenue claims to be nothing but site formation and clearance, it is the contention of the appellant that 'mining service' was rendered taxable only after 2007 and that 'site formation and clearance service' was intended to tax the work that precedes construction activities.. Drawing attention to section 2 of the Coal Mines (Nationalisation Act, 1973, Learned Authorized Representative contended that mines are excavations and shafts are the connection between the surface of the earth and the location of the coal seams and that these definitions would indicate that section 65(105)(zzzy) of Finance Act, 1994 is intended to tax services rendered in an existing mine. That submission does not convince because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estment projects attractive to investors while at the same time retaining control over the additions to the railway network as well as its integration with the existing infrastructure. The relevant sub-clause in section 65 of Finance Act, 1994 which defines 'commercial and industrial construction is: '(25b) "Commercial or Industrial Construction " means - (a) construction of a new building or a civil structure or a part thereof; or (b) construction of pipeline or conduit; or (c) completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i-Mumbai)] and Delhi Metro Rail Corporation Limited v. Municipal Corporation of Delhi and Others [2008(103) DRJ] to drive home the point that coverage under Railways Act, 1989 is sufficient to consider any such infrastructure as railways. We notice that the Railway Act, 1989 provides for railways with public investment and private investment and both function under the same statute. Such railways established in the private sector have a statutorily acknowledged Administrator. Consequently, we too hold that railway sidings built by the appellant fall within the exclusionary portion of section 65(25a) and are outside the ambit of taxation. 9. For the above reasons, we confirm the liability to tax on the labour portion of work exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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