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TMI Blog2024 (11) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... also set aside. The appeal filed by the Appellant is partly allowed in the above terms. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Nishant Mishra, Advocate Ms. Parinita Gupta, Advocate for the Appellant Shri Manish Raj, Authorized Representative for the Respondent ORDER The present appeal has been filed by the Appellant assailing the Order-in-Appeal No.106-ST/APPL/KNP/ADG-NACIN/2017-18 dated 27.03.2018 passed by learned Commissioner Additional Director General NACIN (ZTI), Kanpur. 2. The facts of the case in brief are that the Appellant is a proprietorship firm, holding Service Tax Registration dated 26.12.2012 under the category of 'Management, Maintenance or Repair Services'. The Appellant had been solely rendering services of maintenance of Railways at various Railways sidings of the Food Corporation of India [FCI] under works contracts as execution of work required the transfer of materials. The Appellant had started working only w.e.f. 01.08.2011 and have been exclusively providing services in respect of only one customer namely FCI a wholly owned organization of the Government of India and solely relating to the mainte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. I confirm and determine the amount (Gross) of Rs.36,17,688/-(Rupees Thirty Six Lakhs Seventeen Thousand Six Hundred Eighty Eight only) as value of taxable services charged and received by the party from their customers in lieu of providing taxable services under the category of Management, Maintenance or Repair Service during the period 2011-12 2012-13 and confirmed the demand of Service Tax amounting to Rs.3,58,598/-(inclusive of Cesses) (Rupees Three Lakhs Fifty Eight Thousand Five Hundred and Ninety eight only) under Section 73(2) of the Finance Act, 1994 read with Section 68 of the Act ibid and Rule 6 of the Service Tax Rules, 1994 and I appropriate the amount of Rs.2,20,097/- already deposited by the party as service tax during current proceedings. 2. I order to recover interest at the appropriate rate for the relevant period for delayed payment of the service tax under the provisions of Section 75 of the Act ibid. 3. I impose penalty of Rs.10,000/-(Rupees Ten Thousand only) upon the party under Section 77 of the said Act for contravention of various provisions of Section 67 68 of the Act ibid and Rule 6 of the Service Tax Rules, 1994. 4. I impose penalty of Rs.3,58,598/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai-II, 2015(38)STR 194 (Tri.-Mumbai) wherein exemption from service tax under Commercial and Industrial construction services was allowed in respect of Construction work of stations of Delhi Metro Railway Project constructed for Delhi Metro Corporation. I find that Delhi Metro provides services of public transportation, therefore, it is 'railways in terms of definition under the Railways Act, 1989 and hence eligible for exemption under service tax. However above case law is not applicable in the instant case as railway tracks are for private use by Food Corporation of India and hence, are not railways' for public carriage of passenger or goods Therefore, exemption under notification No.24/2009-S.T. dated 27.07.2009 as amended, is not available in the instant case and adjudicating authority has rightly confirmed the demand alongwith interest. However, I find that the demand of service tax was raised on the basis of Form 26AS, therefore, I have reason to believe the details of transaction are entered in specified record. Therefore, I reduce the penalty under Section 78 to 50% of the tax amount i.e. Rs.1,79,299/- only. I do not interfere with the quantum of penalty of Rs.10,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vation or restoration of, or similar services, in relation to (b) and (c); or (e) turnkey projects including engineering, procurement and construction or commissioning (EPC) projects; 8. We find that the issue is no more res integra and has been decided by the Tribunal in the case of KVR Rail Infra Projects Pvt. Ltd. vs. Commissioner of Central Tax, Secunderabad reported as 2019 (27) G.S.T.L. 549 (Tri.-Hyd.) relevant paragraphs are reproduced as under:- 11. From the above definition, it can be seen that the execution of works in respect of roads, Airports, Railways, Transport Terminals, bridges, tunnels, dams and ports are excluded from the purview of levy of the said category of service. The department relies upon the definition of Railways contained in Section 2(31) of the Railways Act 1989. It has to be mentioned that the definition of the services in Section 65(25b) or Section 65(105)(zzzza) does not make any differentiation between a Government railway or a non-Government railway. These sections merely uses the word railways . The Railways Act defines government railway under section 2(20). Government railway means a railway owned by the Central Government . Section 2(25) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are unable to accept the contention raised by the Revenue in this regard and reject the same totally. In other words, the law has to be interpreted as it stood, as held by the Hon ble Apex Court in the case of Doypack Systems Pvt. Ltd. [1988 (36) E.L.T. 201 (S.C.)] wherein it has been held that the notings in the government files are not relevant for interpretation of the statutes and the statute has to be interpreted by the wordings explicitly used therein and if there is no ambiguity in the language used therein, there is no need to refer to the notings in the government file. On that ground also, the observation of the adjudicating authority has no bearing to the facts on hand and has to be rejected. 5.3. The learned adjudicating authority has relied on the definition of Section 65D(O) in the context of transportation of passengers by various modes such as monorail, tramways, metro rails, etc. This definition came into force only w.e.f. 1-7-2012 but the demands in the impugned order pertain to the period prior to 1-7-2012 and therefore this definition has no bearing whatsoever and no application for interpreting the law as it stood at the relevant time. 5.4 The Hon ble High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt para is reproduced as under : Seeing from another angle that the services provided by the appellant is the construction of rapid rail corridor which stands excluded otherwise from the tax ambit even of the works contract service. Though it is the case of the Department that the exemption is for railways and the metro corridor do not classify to be called as railways for it being a commercial concern. But this ground has already been adjudicated by Hon ble Apex Court in the case Jagjeet Cotton Textile Mills v. Chief Commercial Superintendent, 1998 (5) S.C.C. (126) wherein the Hon ble Apex Court has held that Delhi Metro Rail is a Government railway as defined in Indian Railway Act. Since Railway also is meant to run on commercial basis, DMRC cannot be distinguished from being called as railways merely on the ground that it involves a commercial angle. This decision has been followed by Hon ble Delhi High Court as well in the case of DMRC itself titled as DMRC v. Municipal Corporation of Delhi, 2008 (103) DRJ 369. Hon ble High Court of Karnataka in the case of DMRC v. Ministry of Finance, 2013 (6) T.M.I. 78 has also held that work contract services in respect of railways are exclu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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