"CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL MUMBAI WEST ZONAL BENCH SERVICE TAX APPEAL NO: 85449 OF 2017 [Arising out of Order-in-Appeal No: NGP/EXCUS/000/APPL/440/16-17 dated 8th December 2016 passed by the Commissioner of Central Excise & Customs (Appeals), Nagpur.] Central India Engineering Plot No.6, Tatya Tope Nagar, Khamla Road Nagpur - 440015 … Appellant versus Commissioner of Customs & Central Excise Nagpur – II Kendriya Utpad Shulk Bhavaan, Civil Lines Nagpur - 440001 …Respondent APPEARANCE: Shri Mayur Shroff, Advocate for the appellant Shri Adeeb Pathan, Deputy Commissioner (AR) for the respondent CORAM: HON’BLE MR C J MATHEW, MEMBER (TECHNICAL) HON’BLE MR AJAY SHARMA, MEMBER (JUDICIAL) FINAL ORDER NO: 86242/2025 DATE OF HEARING: 13/02/2025 DATE OF DECISION: 12/08/2025 PER: C J MATHEW 2 ST/85449/2017 Central this dispute, assailing the order1 of Commissioner of Customs, Central Excise & Service Tax (Appeals), Nagpur for reversing the decision of the original authority to drop proceedings initiated for recovery of tax of ₹ 1,87,593 under section 73 of Finance Act, 1994, along with applicable interest under section 75 of Finance Act, 1994, besides imposing penalties including under section 78 of Finance Act, 1994, is the question of what a ‘road’ is as well as the intent of exempting certain activities in connection with ‘roads’ from the purview of tax coverage. The demand pertained to ₹ 15,17,749 received by the appellant, M/s Central India Engineering, as payment for services rendered in 2008-09 against work order for ‘repairs and maintenance of landscaping of road dividers’ by Nagpur Municipal Corporation. 2. Nagpur Municipal Corporation had, in this particular work order, restricted the scope of work to ‘road dividers’ while, presumably, awarding separately for maintenance of the carriageways on either side. The original authority declined to confirm the proposals on the finding that ‘dividers’ are inseparable from roads whose maintenance and repairs were exempted, by insertion of ‘Notwithstanding anything contained in section 66, no service tax shall be levied or collected in respect of Management, Maintenance and Repairs of Roads, during the period on and from the 16th day of June, 2005 to the 26th day of July, 2009.’ 1 [order-in-appeal no. NGP-EXCUS/000/APPL/440/16-17 dated 8th December 2016] 3 ST/85449/2017 in section 97 of Finance Act, 1994 by Finance Act, 2012. 3. The reviewing authority appeared to believe that this finding was not legal and proper as ‘landscaping’ merely improves appearance which had nothing to do with the intent of the retrospective exemption supra. It was also noted that Central Board of Excise & Customs (CBEC) had enumerated the scope of ‘maintenance or repair of roads’ in clarification2 which did not include the activity undertaken by the appellant herein. The impugned order accepted the submissions of review authority and relied upon the decision of the Tribunal in Suresh Jaiswal v. Commissioner of Central Excise, Jaipur [2016 (42) STR 97 (Tri-Del)]. 4. We have heard Learned Counsel for appellant and Learned Authorized Representative at length. 5. It is not in dispute that the activity is classifiable as ‘maintenance or repair service’ which, incidentally, extends to ‘roads’ too. A ‘road’ is a thoroughfare – either public or private – and is distinguished from land on either side by that very distinction. Roads are perceived as essential to traffic - by foot, muscle-ridden or motive power – without trespassing on adjunct property. Its bearing on movement sufficed to exclude construction thereof from the ambit of relevant taxable entry till 2012 and from taxation in the ‘negative list’ 2 [circular no. 110/4/2009-ST dated 23rd February 2009] 4 ST/85449/2017 regime. A road may or may not have a divider; dividers are safety devices and landscaping of dividers relieves monotony which is detrimental to traffic safety. In any case, ‘roads’ comprise ‘carriageways’ and it is incorrect to construe ‘carriageways’ as ‘roads’ which the first appellate authority appears to have done. Aesthetics notwithstanding, landscaped ‘dividers’ are not excludible from roads merely for that reason and in the absence of reference to any authoritative source for such distinction. 6. As pointed by Learned Counsel, the contextual clarification preceded the grant of exemption to ‘maintenance or repair of roads’ and, intended to distinguish activity restricted to ‘construction’ that alone was exempted then, was of no relevance with extension of the exemption by communication3 issued by the Central Board of Excise & Customs (CBEC). Furthermore, the retrospective exemption was held by order4 of the Tribunal as applicable to ‘pavements’ in Shree Mohangarh Construction Co v. Commissioner of Central Excise, Jaipur-II and to ‘dividers’ in Arun Constructions v. Commissioner of Central Excise [2014 (6) TMI 693 – CESTAT MUMBAI]. 7. Besides the clear finding that ‘roads’ intended by the retrospective exemption is not restricted to ‘carriageway’ in the decisions supra, the conflicted view of the tax administration in the 3 [ F no. B1/6/2005-TRU] 4 [final order no. 52041/2018 dated 4th May 2018 in service tax appeal no. 58795/2013] 5 ST/85449/2017 communication and clarifications casts doubt on the invoking of extended period of limitation in show cause notice of 9th November 2011 to fasten duty liability for 2008-09. 8. For the above reasons, the impugned order is set aside to allow the appeal. (Order pronounced in the open court on 12/08/2025) (AJAY SHARMA) Member (Judicial) (C J MATHEW) Member (Technical) */as "