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TMI Blog2023 (9) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... State Power Generation Company Limited (BSPGCL), Kanti Bijli Utpadan Nigam Limited (KBUNL), BTPS and SAIL under the category of "Works Contract Service" , along with interest and imposing penalty on the appellant under the Finance Act, 1994. 2. The facts of the case are that the appellant is engaged in construction of Railway Sidings on the basis of work orders awarded by M/s Rites Limited. During the period 01.04.2012 to 31.03.2016, the appellant has constructed railway tracks and railway sidings for NTPC, Bihar State Power Generation Company Limited (BSPGCL), Kanti Bijli Utpadan Nigam Limited (KBUNL), Barawni Thermal Power Station (BTPS) as "Works Contract Service" as defined in Section 65B (54) of the Finance Act, 1994. Such services we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide Final Order No.A/86247/2022 dated 17.02.2022. 6. On the other hand, the ld.A.R. for the Revenue opposes the contention of the ld.Counsel for the appellant and submits that the moot question in this case is whether the railways used by the private party can be exempted under the above cited Notification or not. 7. Heard the parties and considered the submissions. 8. We find that the same issue came up before this Tribunal in the case of Konkan Railway Corporation Limited (supra), wherein this Tribunal has observed as under : "6. Learned Authorised Representative submits that the decision of the Tribunal in re KVR Rail Infra Projects Pvt Ltd is pending before the Hon'ble Supreme Court and that the impugned project, undertaken exclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaks for itself. This transgression on the part of the adjudicating authority is not acceptable. We do not wish to dilate further on this. 8. Entitlement of every sort of railways to the exemption provided, either by exclusion from the definition of 'taxable service' in the 'pre-negative list' regime or by specific exemption in the 'negative list' regime has been dealt with in several decisions of the Tribunal. While addressing the issue of 'commercial consideration' being the 7 ST/86191/2021 bench mark for determining eligibility for exclusion/exemption, the Tribunal, in re Hindustan Construction Company Ltd, held that '5. The exclusion, whether under the separate entry or within the umbrella of the new taxable service, of 'railways' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure level playing field to all similar service providers. 3.9 Indian Railways under the Ministry of Railways is part of the Government of India and not on commercial basis. Therefore, Indian Railways cannot be compared or equated with MMO/DMRC, a Company formed under the Companies Act and is committed to run purely on commercial lines even if it is fully owned by the Government.... "Railway" in the Indian Context is popularly known as "Indian Railways" and is more appropriately understood as Railways operated under the Indian Railways Act especially for the purpose of 8 ST/86191/2021 any special dispensations such as tax exemptions.' 6. We find no authority for these sweeping statements on the intent of Finance Act, 1994, the scope o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate to place reliance on such definitions save under the express authority of Finance Act, 1994. It is also not correct to contend that the coverage of the statute governing Railways is limited to Government Railways; no such distinction is drawn except for the purposes of jurisdiction of the railway 9 ST/86191/2021 authorities specified therein for the governance of the Railways belonging to the Government. 8. In the absence of any qualification for the 'railway' incorporated in the exclusion component of the taxable service, any railway, irrespective of ownership, is covered. Within the scheme of 'negative list', there is a specific exemption for metro or monorail within the broader exclusion available to Railways. The exclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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