Custom, Excise & Service Tax Tribunal
Coms,C.Ex &Amp; S.Tax - Ranchi vs M/S. Hindustan Steelworks ... on 13 June, 2018
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
S.T.Appeal No.146/10
(Arising out of Order-in-Appeal No.17/RAN/2010 dt.11.02.2010 passed by
Commissioner (Appeals) of Central Excise & Service Tax, Ranchi )
Commr. of Central Excise & S.Tax, Ranchi
Applicant (s)/Appellant (s)
Vs.
M/s Hindustan Steel Works Construction Ltd.
Respondent (s)
Appearance:
Shri K. Choudhury, Supdt. (AR) for the Revenue (s) Shri Ravi Raghavan, Adv. and Shri R.Rajak, C.A. for the Respondent (s) CORAM:
HON'BLE SHRI P. K. CHOUDHARY, JUDICIAL MEMBER HON'BLE SHRI BIJAY KUMAR, TECHNICAL MEMBER Date of Hearing : 13.06.2018 Date of Decision : 13.06.2018 ORDER NO.FO/76459/2018 Per Shri P. K. Choudhary :
The present appeal is filed by the Revenue against the Order-in-Appeal No.17/RAN/2010 dt.11.02.2010 passed by Commissioner (Appeals) of Central Excise & Service Tax, Ranchi.
2. Briefly stated the facts of the case are that the Respondent- Assessee, M/s Hindustan Steel Works Construction Ltd., entered into a contract with Steel Authority of India, Bokaro Steel Plant vide Work Order dated 08.06.2005 for re-laying steel work, carpeting and widening of road and repair and maintenance of the roads. The Respondent had provided the services by way of management, repair 2 S.T.Appeal No. 146/10 and maintenance of roads to Bokaro Steel Plant for the period October, 2005 to March, 2006 for a fixed consideration within the Steel Plant premises. Show-cause notice dated 30th March, 2007 was issued alleging non-payment of service tax. It is the case of the Revenue that the Respondent-Assessee are providing repair and maintenance of road services and were not showing the service and value thereof in the ST-3 Returns submitted by them. The Adjudicating Authority confirmed the demand of service tax amounting to Rs.16,89,085/- along with interest and imposed penalty of equal amount of service tax under Section 78 and also imposed penalty under Sections 77 and 76 of the Finance Act, 1994. The assessee filed appeal before the ld.Commissioner (Appeals). The ld. Commissioner (Appeals) vide the impugned order allowed the appeal. Being aggrieved with the order, Revenue is in appeal before the Tribunal.
3. The ld.D.R. appearing on behalf of the Revenue, reiterates the grounds of appeal and submits that the Respondent-Assessee have carried out Road Repair and Maintenance Services within the premises of Bokaro Steel Plant and since the Plant is engaged in the commercial activity, all the infrastructure within the Plant premises, including roads, are used for commercial activity and not for public utility service. The ld.D.R. further submits that w.e.f. 16.06.2005, Section 65 (64), the services relating to maintenance or management of immovable properties such as roads, airports etc. are covered under 3 S.T.Appeal No. 146/10 the purview of service tax. This has been specifically clarified in the CBEC's Circular No.B1/6/2005-TRU dated 27.07.2005.
4. The ld.Advocate appearing on behalf of the Respondent- Assessee, submitted a written submissions and made the Bench go through the statutory provisions, Notification and CBEC's Circular dated 27.07.2005 and also filed a compilation relying upon the various decisions. The ld. Advocate submits that the issue in this appeal is whether the service tax is leviable on services by way of re- laying , repairing and maintenance of roads during the period from October, 2005 to March, 2006. It is the case of the Respondent- Assessee that the service tax is not leviable on repair and maintenance of roads in terms of Section 97(1) of the Finance Act, 1994. The ld.Advocate contends that Section 97 was inserted by the Finance Act, 2012 w.e.f.28.05.2012, wherein Sub-Section (1) of Section 97 provided the exemption from the levy of service tax on services by way of management, maintenance and repair of roads during the period 16.06.2005 to 26.07.2009 (both days inclusive). The ld.Advocate also contended that repair and maintenance services of roads are excluded from the levy of service tax under "Commercial or Industrial Construction Services" and "Works Contract" under Section 65 (25B) and Section 65(105)(zzzza) of the Finance Act, 1994, respectively. It is his submission that the service in question is a "Works Contract" pertaining to roads and the same is excluded from the ambit of works contract service in terms of Section 65(105)(zzzza) of the Finance Act, 1994 and the same cannot be 4 S.T.Appeal No. 146/10 covered under the category of repair and maintenance service under Section 65(64) of the Finance Act as the said taxable head will cover only service simplicitor and not works contract. The ld.Advocate further submits that the nature of services provided by the Respondent was composite and the said activity pertains to repair and maintenance of roads which is excluded from the ambit of works contract service in terms of Section 65(105)(zzzza) of the Finance Act, 1994. He also submits that the repair and maintenance of roads have been excluded from the levy of service in terms of the specific entries of "Commercial or Industrial Construction" and "Works Contract" services under Section 65(25B) and Section 65(105)(zzzza) of the Finance Act, 1994, respectively. The ld.Advocate strongly argued that once this is specifically excluded in terms of the aforesaid tax entries, the same cannot be taxed under any general category of management, maintenance or repair service.
5. Heard both sides and perused the appeal records.
6. We find that the present issue is no more res-integra in view of the various decisions of the Hon'ble High Courts and the Tribunal. We find that the Finance Act, 1994, has been amended by introducing Section 97(1) wherein special exemption has been granted for management, maintenance and repair of roads for the period from 16.06.2005 to 26.07.2009 (both days inclusive). We find that in the present case, the period is subsequent to 16.06.2005, when the entries of for management, maintenance and repair of roads, came 5 S.T.Appeal No. 146/10 into existence. The relevant part of the Section 97(1) is reproduced below :
"97. Special provision for exemption in certain cases relating to management, etc. of roads :
(1) Notwithstanding anything contained in Section 66, no service tax shall be levied or collected in respect of management, maintenance or repair of roads, during the period on and from the 16th day of June, 2005 to the 26th day of July, 2009 (both days inclusive)".
We also find that the ld.Commissioner (Appeals) has dealt with the issue in detail. Since we do not find any infirmity in the impugned order, the same is accordingly sustained.
7. In the result, the appeal filed by the Revenue is dismissed.
(Operative part of the Order was pronounced in the open Court.) Sd/ Sd/ (BIJAY KUMAR) (P. K. CHOWDHARY) MEMBER (TECHNICAL) MEMBER (JUDICIAL) mm