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TMI Blog2009 (3) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions and the materials made available by the petitioner - 26882 of 2008(A), - - - Dated:- 4-3-2009 - K.M. Joseph, J. Shri A.N. Rajan Babu, for the Petitioner. Shri P. Parameswaran Nair, Asst. Solicitor, for the Respondent. [Judgment]. - Prayers in the writ petition are as follows. (i) To issue a writ of certiorari or appropriate writ direction or order quashing Exts. P5, P7, P10, P11 and P12. (ii) To declare that the civil works maintenance of roads executed by the petitioner as per RMC 14, RMC 15, RMC 28, RMC 29 and RMC 38 in respect of Vizhinjani - Kattakada road, Varkala - Kallambalam road, Mavelikkara - Thiruvalla road, Kayamkulam - Mavelikkara road, Kidangara - Nerattupuram road, etc. are not taxable ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be engaged, primarily in, commerce or industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. Then, the next provision is Section 65(105)(zzg). It reads as follows. S. 65(105)(zzg). to any person, by any person in relation to management, maintenance or repair. The third provision is Section 65(105)(zzzza). It reads as follows. S. 65(105)(zzzza). to any person, by any other person in relation to the execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. According to the petitioner, a perusal of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore it is excluded from service tax by virtue of Clause (zzzza) of Section 65(105) of the Act. The petitioner received Ext. P5 notice. He was asked to produce month-wise details of payment. The petitioner gave Ext. P6 reply. Thereafter, he was informed that there is no exemption. Ext. P8 is a communication from the Deputy Commissioner indicating that the work is taxable. The petitioner sent representation to the Directorate General of Service Tax to examine the provision vide Ext. P9. Ext. P10 is communication to the Director General of National Highways Builders Federation indicating that maintenance or repair of road is exigible to service tax under Section 65(105)(zzg). Ext. P11 is issued by the Assistant Director of Directorate Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the fact that Ext. P10 read with Ext. P11 is issued would not leave the concerned officer bound by the said communication. In this regard, he relied on Section 37B of the Central Excise Act and, therefore, he would submit that the officer will take a decision after considering the legal provision and the materials made available by the petitioner and considering Exts. P10 and P11 also. But, that is not to say that he will feel bound by Exts. P10 and P11, he submits. In other words, it will constitute a material before him in the matter of taking a decision in accordance with law. In the light of this, I feel that this is a matter where the petitioner can produce all materials. It is submitted that the petitioner has produced a number of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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