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TMI Blog2024 (8) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand confirmed in the impugned order on this count is not sustainable. Exemption from service tax - construction of railway siding - HELD THAT:- The appellant has also rendered service to RITS in connection with the construction of railway siding. They had also rendered the service of supplying and laying of blanketing material for the project construction of railway, formation of major and minor bridges, laying of railway track including supply of p. way fittings, etc., in connection with new railway siding for Sonepur Bazari Project of Eastern Coalfields Limited, near Pandabeswar, West Bengal to M/s. Bridge Roof Company (India) Ltd. It is observed that the above said services were rendered by the appellant to the Railways. It is observed that the issue of liability of Service Tax on railway sidings is no more res integra as the same has already been decided in favour of the appellant by the Tribunal, West Zonal Bench, Mumbai in the case of KONKAN RAILWAY CORPORATION LTD VERSUS COMMISSIONER OF CGST CENTRAL EXCISE [ 2023 (2) TMI 1175 - CESTAT MUMBAI] holding that any service in relation to railway siding constructed and erected are not liable to Service Tax, which has been affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicated vide the Order-in-Original dated 26.05.2017 wherein the Ld. Joint Commissioner, C.G.S.T. C.Ex., Durgapur confirmed the demands raised in the Notice, along with interest and penalty. 2.2. On appeal, the Ld. Commissioner (Appeals) has upheld the demands confirmed in the Order-in-Original dated 26.05.2017. 3. Aggrieved against the confirmation of the demands, the appellant has filed this appeal. 4. The appellant submits that they have received an amount of Rs.2,26,04,801/- from M/s. Bengal Aerotropolis Limited against construction of road between NH2 and Aerotropolis Township; the said road is meant for utilization by the general public and it has been certified by the Andal Gram Panchayat that the said road is for the purpose of use by the general public. The appellant submits that construction of road is exempted by way of Sl. No. 13(a) of Notification No. 25/2012-S.T. dated 20.06.2012. 4.1. It is further submitted that the appellant had also received a sum of Rs.2,15,38,889/- from RITS for construction of railway siding; the appellant also received a sum of Rs.4,25,77,289/- from M/s. Bridge Roof Company (India) Limited for construction of railway siding. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t submits that this demand also was raised by invoking the extended period of limitation; as there is no suppression established on the part of the appellant, this demand is not sustainable, on the ground of limitation. They have further submitted that the issue is revenue neutral as the appellant is entitled to take CENVAT Credit of the same amount on the same date of payment. Hence, it is their contention that the demand confirmed under the category of GTA Service is not sustainable. 5. The Ld. Departmental Representative appearing for the Revenue reiterated the findings in the impugned order. 6. Heard both sides and perused the appeal documents. 7. The appellant has rendered service in relation to construction of road between NH2 and Aerotropolis Township for M/s. Bengal Aerotropolis Limited. The appellant has pointed out that this road has been certified by the Andal Gram Panchayat as a road meant for public use . We observe that construction of road is exempted in terms of Sl. No. 13(a) of Notification No. 25/2012-S.T. dated 20.06.2012. For the sake of ready reference, the relevant portion of the said Notification is reproduced below: - 13. Services provided by way of construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had placed reliance upon the decisions of the Tribunal supra before the original authority which did not appear to have carried much impression with him and 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 off the mark in understanding the logic and the emphasis of the SCN which in my view is well founded and amply supported by the statute, be it the Finance Act or the Railways Act. For this reason, an examination of the judicial pronouncements quoted by the Noticee in their defence d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 of the taxable service under which the levy has been confirmed or the status of railway operations in the country. In the context of the claim of the appellants, limited to the exclusion from the taxability otherwise attached to 'commercial or industrial construction service', we are not required to define the scope of the taxable service; the test of commercial imperative of the impugned activity is not in dispute. All that we are required to ascertain is the conformity of the operation of the recipients of the service to the excluded aspect of the taxable service. The adjudicating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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, 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 1 July 2012, and exemption for the period, thereafter, is abundantly clear. Relying on the decision of the Hon ble Supreme Court in the aforesaid case, this Tribunal has also taken the same view in the case of Hari Construction Associates Pvt. Ltd. v. Commissioner of C.G.S.T. Excise, Patna-II [Final Order No. 76168 of 2023 dated 13.07.2023 in Service Tax Appeal No. 79066 of 2018 CESTAT, Kolkata]. 8.1. By relying on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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