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TMI Blog2024 (3) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice in Finance Act, 1994 excluding railways from the ambit of the service did not place any restriction on benefit going to private railways. The statute, 10 ST/86191/2021 too, did not consider it necessary to fall back on the definition of railways in another statute for determination of taxability and it is not open to the adjudicating authority to arrogate that privilege in an executive capacity. The intent of exclusion prior to 1st July 2012, and exemption for the period, thereafter, is abundantly clear. The issue has already been settled by this Tribunal and it has been categorically held that there is no distinction between public railways and private railways. In these circumstances, following the decision of this Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 20.06.2012 with effect from 01.07.2012. The period of dispute in this case is from 2011-12 to 2015-16. 3. In these set of facts, a Show Cause Notice was issued to the appellant proposing to demand Service Tax from the appellant. The matter was adjudicated by holding that the exemption which the appellant has claimed does not cover since the exemption so provided is in respect of railways used for public carriage whereas these railways in question were constructed and used by M/s. Damodar Valley Corporation; therefore, they were not entitled for the exemption; accordingly, the demand came to be confirmed. Against the said order, the appellant is before us. 4. Heard the parties and considered their submissions. 5. We have gone through th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021 demonstrating inability to acknowledge the binding precedent of a judgment or decision of appellate authority or the manner in which it is to be read, the adjudication order has referred to decision in re Afcons Infrastructure Ltd but to the exclusion of everything therein other than submissions made on behalf of Revenue and his opinion therefrom that 52. Having arrived at the above conclusion, I turn my attention to the prime contention of the Noticee that the impugned SCN has resorted to a narrow understanding of expression 'railways' in the absence of a permissible referral under the Finance Act/Mega exemption notification. From my reading of the records of the case and the available material, I find that the Noticee is way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it appropriate to record the particular finding the adjudicating authority that 3.7 The Term Railways mentioned in Section 65(25b) for the purpose of exclusion from the scope of levy of Service Tax needs to be understood in the appropriate context and especially the scheme of taxation of services under the Finance Act, 1994. The objective to levy Service Tax under Section 65(105)(zzzp) read with Section 65(25b) is clearly to levy Service Tax on Commercial or Industrial construction service. However, Commercial or Industrial construction of building or structure in respect of railways is excluded from the scope of the levy. 3.8 It is the general principle followed in the levy of Service Tax that when Government undertakes commercial or busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the recipients of the service to the excluded aspect of the taxable service. The adjudicating authority is far from correct in assuming that the dutiability devolving, under Customs Act, 1962 and Central Excise Act, 1944, on governmental transactions by specific inclusion in the statutes is, similarly, present in Finance Act, 1994. Nor does the reason ascribed by him as the prompting for such inclusion in the commodity tax statutes find resonance in any decision, circular or elucidation. Furthermore, to the extent of our understanding, the operations, or its popular designation as Indian Railways , of Government-run Railways is not stripped of its commercial mantle. A stray reference to the statute governing railway operations does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition of railway , either therein or in Finance Act, 1994, the distinction between railway for private purpose and railway for public service cannot be artificially contrived to suit tax administration; neither can the definition in another statute be drawn upon for the purported purpose of illumination. The Railways Act, 1989 was enacted to authorize Government of India to operate the railway network of the country; it also affords a framework for administration of the railway services and jurisdictional monopoly. The taxable service in Finance Act, 1994 excluding railways from the ambit of the service did not place any restriction on benefit going to private railways. The statute, 10 ST/86191/2021 too, did not consider it necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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