M/S.Arss Infrastructure Projects LTD. vs. Union Of INDIA
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06.11.2019 Heard Mr.Rawal learned Senior Counsel for the petitioner and Mr.P.K.Parhi, learned Senior counsel for the CGST and Central Excise.
By way of this writ petition, the petitioner prays for quashing the order-in-in-original No.COMMR/BBSR- ST/17/2018 dated 28.03.2018 passed by the Commissioner, GST & Central Excise.
The petitioner has an alternate remedy of appeal. However, the view which has been canvassed in paragraph-5 is required to be viewed seriously, more particularly in view of the statutory provision which have been shown to us as follows:-
The following statutory provisions clearly show that the activities of the petitioner do not fall under the ambit of the Finance Act, 1994 in respect of construction, maintenance and repair of roads.
Period prior to 16.06.2005 Period from 16.06.2005 to 26.07.2009 From 27.07.2009 to 20.06.2012 Prior to 16.06.2005, Section 65(30a) of the Finance Act, 1994 was for construction service but it specifically excluded laying or relaying of roads. The provision read as under: “Section 65. Definitions. (30-a) “construction service” means- (a) construction of new building or civil structure or a part thereof; or (b) repair, By Act No.18 of 2005, the abovesaid provision was amended and Section 65(25b) was introduced. The said provisions read as under: “Section 65.Definitions (25-b) “Commercial or industrial construction service” means- (a) construction of a new building or a civil structure or a party thereof; or (b) construction of pipeline or conduit; or (c) completion and finishing services such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and Notification No. 24/2009- S.T. was issued on 27.07.2009 (Page 164 of the writ petition) which clearly provided that the management, maintenance or repaid of roads excluded from the whole of service tax leviable thereon under Section 66 of W.P.(C) No. 15487 of 2018
2 alternation or restoration of, or similar services in relation to, building or civil structure, which is- (i) used, or to be used, primarily for; or (ii) occupied, or to be occupied, primarily with: or (iii) engaged, or to be engaged, primarily in, commerce or industry, or work intended for commerce or industry, but does not include road, airport, railway, transport terminal, bridge, tunnel, long distance pipeline and dam;” metal joinery and carpentry, fencing and railing, construction or swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or (d) repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit, Which is- (i) used, or to be used, primarily for; or (ii) occupied, or to be occupied, primarily with ;or (iii) engaged, or to be engaged, primarily in, commerce or industry, or work intended for commence or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridge, tunnels and dams; (30-1) “construction of complex” means- (a) construction of a new residential complex or a part thereof; or (b) completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fitting and other similar services; or (c) repaid, alternation, the Finance Act. Thereafter, there said notification dated 27.07.2009 was rescinded by way of Notification No.24/2012- S.T. dated 20.06.2012. However, on the very same day, vide Notification No.25/2012- Service Tax dated 20.06.2012 (Mega Exemption Notification) the services provided by way of construction, erection, commissioning installations, completion, fitting out, repair, maintenance, renovation, or alteration of roads was exempted from the whole of service tax leviable thereon under Section 66 of the Finance Act, 1994. 3 renovation or restoration of, or similar services in relation to, residential complex;” Section 97 was inserted in the Finance Act, 1994 by way of an amendment through the Finance Act, 2012. Section 97 as inserted in 2012 reads as under:
“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 16t day of June, 2005 to the 26th day or July, 2009 (both days inclusive). (2) Refund shall be made of all such service tax which has been collected but which would not have been so collected had sub- section (1) been in force at all material times. (3) Notwithstanding anything contained in this chapter, an application for the claim of refund of service tax shall be made within a period of six months from the date of which the Finance Bill, 2012 receive the assent of the President.”
The following statutory provisions clearly show that the activities of the Petitioner do not fall under the ambit of the Finance Act, 1994 in respect of site formation and clearance, excavation and earthmoving and demolition services relating to agriculture.
4 Period prior to 16.06.2005 Period from 16.06.2005 till the time Finance Act,1994 remained in operation. The service was not taxable. Date of introduction: 16.06.2005 vide Notification No.15/2005- ST “site formation and clearance…….” services when provided in relation, inter alia, to agriculture is excluded from the levy of Service Tax in terms of Section 65(97a) of the Finance Act, 1994. “Section65. Definition 97-a) “site formation and clearance, excavation and earthmoving and demolition” includes- (i)
drilling, boring and core extraction services for construction, geophysical, geological or similar purposes; or (ii) soil stabilization; or (iii) horizontal drilling for the passage of cables of drain pipes; or (iv) land reclamation work; or (v) contaminated to stippling work; or (vi) demolition and wrecking of building, structure or road, but does not include such services provided in relation to agriculture, irrigation, watershed development and drilling, digging, repairing, renovating or restoring of water sources or water bodies;” Section 65. Definitions (zzz-1) to any person, by any other person, in relation to site formation and clearance, excavation and earthmoving and demolition and such other similar activities. Exemption to site formation and clearance, excavation and demolition etc. when provided in the course of construction of Roads, airports, railways, transport terminals, bridges, tunnels, dams and ports (w.e.f. 16.06.2005): exempts the site formation and clearance, excavation and earthmoving and demolition and such other similar activities, referred to in sub-clause (zzza) of clause (105) of section 65 of the Finance Ac, provided to any person by any other person in the course of construction
5 of roads, airports, railways, transport terminals, bridges, tunnels, dams, ports or other ports, from the whole of service tax leviable thereon under section 66 of the said Finance Act. (Notification No.17/2005-ST dated 07.06.2005).
Prima facie, the exemption sought for as per the statutory provisions elaborated above are not granted.
In that view of the matter, the appeal shall be filed within a period of four weeks and till then no coercive action shall be taken against the petitioner. In our view, if an application is moved for exemption of pre-deposit of 7.5% keeping in view the statutory provision, the authority will consider the same and hear the matter on merit.
Issue urgent certified copy of the order on proper application.
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K.S. JHAVERI
(Chief Justice)
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K.R. MOHAPATRA
(Judge) ss
Reproduced from the public record of the Orissa High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.