Dr. D.M. Misra, J.
1. This is an application for waiver of predeposit of service tax of Rs.1,00,82,008/- and penalty of Rs.1,15,00,000/-imposed under Section 78, penalty under Section 77 and penalty under Section 76 (not quantified) of the Finance Act, 1994.
2. At the outset, the ld. Advocate appearing for the Applicant, has submitted that during the relevant period i.e. from 16th June, 2005 to 31.03.2010, the Applicant provided taxable services under the category of Commercial or Industrial Construction Services under sub-clause (zzq) of Clause (105) of Section 65 of the Finance Act, 1994. The services primarily rendered by them relates to widening of roads and construction of bituminous roads, filling the potholes, depressions etc, with bituminous macadam, relaying, re-surfacing and strengthening of roads. It is his contention that demand has been confirmed against them on the ground that the activities carried out by the Applicant do not fall under the exclusion category of construction of roads, but relates to repair and maintenance of roads. He submits that the retrospective amendment to the Finance Act, 1994, namely, Sections 97 and 98, inserted in the Finance Act, 2012, no service tax be leviable in respect of management, maintenance and repairing of roads for the period from 16th June, 2005 to 26th July, 2009. For the period from 27.07.2009 to 31.03.2010, the said repair and maintenance of roads are exempted vide Notification No.24/2009-ST dated 27.07.2009.
3. The ld. A.R. for the Department, does not dispute about the said retrospective amendment and applicability of Notification No.24/2009-ST dated 27.07.2009 for the subsequent period.
4. After hearing both sides for some time, we find that the appeal itself could be disposed of at this stage. Accordingly, after waiving the requirement of predeposit of dues adjudged and with the consent of both sides, the appeal is taken up for final disposal.
5. We find that the issue relates to leviability of service tax on repair and maintenance of roads for the period 16.06.2005 to 31.03.2010. We agree with the contention of the ld.Advocate for the Applicant that by virtue of Sections 97 and 98 of the Finance Act, 2012, service tax is not chargeable on repairing and maintenance of roads for the period 16.06.2005 to 26.07.2009. Also we find force in the submissions that for the period 27.07.2009 to 31.03.2010, the said services are covered under exemption Notification 24/2009-ST dated 27.07.2009. In the result, we do not find merit in the impugned order and accordingly, the same is set aside and the appeal filed by the Appellant is allowed.