IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 14-9-2010 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.Nos.9835, 9836, 9837, 9838, 9839, 9840, 9841, 8784, 8785, 8786, 8787, 8822, 8823, 8824, 9032, 9033, 9034, 10238, 10239, 10240, 10241, 10242, 11716, 11717, 12022, 17101, 17102, 19348 of 2010 W.P.Nos.51, 52, 53, 54, 138, 139, 140, 141, 142, 143, 303, 304, 305, 307, 308, 309, 310, 468, 469, 470, 471, 482, 483, 484, 567, 568, 569, 570, 571, 572, 573, 574, 575, 576, 696, 697, 698, 699, 700, 701, 702, 703, 2416, 9921, 9922, 9923, 9924, 9925, 11094, 11225, 11912, 11913, 12697, 13174, 13175, 25871 of 2009 W.P.Nos.30122, 30123 of 2008 (86 Cases) and Connected miscellaneous petitions. W.P.No.9835 of 2010 M/s.Karvembu & Co., Contractors, rep.by its Partner S.Balasubramanian, No.44, Erode Road, Muthur- 638 105, Tiruppur District. ... Petitioner in W.P.9835/10 Vs. 1. The Under Secretary to Government of India, Department of Revenue, Tax Search Unit, New Delhi. 2. Union of India, rep.by its Secretary, Ministry of Finance, New Delhi – 110 001. 3. The Commissioner of Customs, Central Excise and Service Tax, Erode I Division, 81, Bharathi Nagar, Soolai, Erode – 638 004. https://hcservices.ecourts.gov.in/hcservices/ 4. The Deputy Commissioner of Customs, Central Excise and Service Tax, No.81, Bharathi Nagar, Sathy Main Road, Soolai, Veerappan Chathiram PO, Erode. 5. The Superintendent (Preventive), Office of the Deputy Commissioner, Of Central Excise & Service Tax, Erode I Division, No.81, Bharathi Nagar, Sathy Main Road, Soolai, Erode – 638 004. ... Respondents 1 to 5 in W.P.No.9835 to 9841, 8784 to 8787, 8822 to 8824, 9032 to 9034, 10238 to 10242, 11716, 11717, 12022, 19348/10, 12697/09 and respondents 1 to 4 in w.P.No.11225/09 M/s.Senbagam Construction Rep.by its Partner Kuppusamy, No.15,Chinnamuthur Muthur 638105, Tiruppur ...Petitioner in W.P.No.9836/10 V.Jagadeesan ...Petitioner in W.P.No.9837/10 M.P.Krishna Kumar ...Petitioner in W.P.No.9838/10 Sri Veera Sundari & Co ...Petitioner in W.P.No.9839/10 rep.by its Managing Partner S.Palani Samy M/s.Sir Amman Constructions Rep.by its Partner S.Selvam, No.435, Karur Main Road, Gandhi Nagar, Moolanur Post Tiruppur District ...Petitioner in W.P.NO.9840/10 M/s.Sabari Construction rep.by its Managing Partner V.Thangamuthu No.4/13 Selvapuram Veera Cholapuram Post, https://hcservices.ecourts.gov.in/hcservices/ Kangayam Taluk, Tiruppur District. ...Petitioner in W.P.No.9841/10 M/s.Sri Gandhi & Co rep.by its Partner G.Subramaniyam No.62, R.K.R.Nagar, Dharapuram 638 656 Tiruppur District. ...Petitioner in W.P.No.8784/10 P.S.Muthu Samy High Ways & Civil Contractor ...Petitioner in W.P.No.8785/10 M/s.Kousic & Co., Rep by its Partner K.G.Mohanraj No.A-24 Housing Unit Kollampalayam Erode -638 002 ...Petitioner in W.P.No.8786/10 L.P.Mohan Palanisamy High Ways Contractor ...Petitioner in W.P.No.8787/10 M.Sakthivel ...Petitioner in W.P.No.8822/10 M.Bojarajan ...Petitioner in W.P.No.8823/10 K.P.C.Mani ...Petitioner in W.P.No.8824/10 M/s.Sriragavendra Constructions Rep by its Proprietor P.Poochamy No.6, Pudupalayam, Muthru 638 105 Tiruppur District ...Petitioner in W.P.No.9032/10 M/s.Achayaa & Co., Rep.by its Managing Partner K.R.Subramaniam No.223-E Amman Kovil Street Vellaakovil - 638111 Tiruppur District ...Petitioner in W.P.No.9033/10 N.Palanisamy Velar ...Petitioner in W.P.No.9034/10 R.Chitrasamy ...Petitioner in W.P.No.10238/10 M/s.T.S.R. & Co., https://hcservices.ecourts.gov.in/hcservices/ Rep.by its proprietor V.N.Ramasamy No.20/6 Kovai Main road, Veerakumar Theatre Back Side, Vellakovil - 638 111, Tiruppur District ...Petitioner in W.P.No.10239/10 M/s.Akila Constructions Rep.by its Managing Partner R.Kannu Samy No.100, Sampathi Nagar, Erode ...Petitioner in W.P.No.10240/10 M/s.Malaiamman & Co., Rep.by its Proprietor P.Kulandaisamy No.47-B, Karattupalayam Alampalayam Post, Muthur, Erode. ...Petitioner in W.P.No.10241/10 M/s.Sridhar & Co., Rep. by its Partner, M.M.Manikandan, No.331/107, North Street, Kodumudi - 638151, Tiurppur District ...Petitioner in W.P.No.10242/10 M/s.Sri Venkateswara Constructions Rep.by its Managing Partner, P.Easwaran No.15/92, Semmegoundenpalayam Sadayampalayam, Kundadam, Dharapuram Taluk, Tiruppur District. ...Petitioner in W.P.No.11716/10 M/s.Muthu Kuamar & Co., Rep by its Partner, C.Chenniappan, R.K.Pudur, Pasur, Kodumudi 638 151 Tiruppur District ...Petitioner in W.P.No.11717/10 M/s.Divya Dharshini & Co., Rep.by its Partner R.Veerakuamr No.144/A, Thottampalayam https://hcservices.ecourts.gov.in/hcservices/ Muthur - 638 105, Kangeyam, Tiruppur District. ...Petitioner in W.P.No.12022/10 K.Boopathy ...Petitioner in WP.No.17101/10 Kandasamy ...Petitioner in WP.No.17102/10 K.M.Natarajan ...Petitioner in WP.No.19348/10 S.Palanisamy ...Petitioner in WP.No.51/09 M/s. Hi move construction 2/13, Koundam Palayam, Vattur (PO) Nammakal District. ...Petitioner in WP.No.52/09 R.Muthuswamy ...Petitioner in WP.No.53/09 K.Ramaswamy ...Petitioner in WP.No.54/09 M/s. Muthuswamy & Co ...Petitioner in WP.No.138/09 M/s. P.V.S.& Co 5/38 Urthotam Athapampatti kolan kontai (PO) Namakkal District. ...Petitioner in WP.No.139/09 M/s. Raj construction, 2/80A Chekkakara Patti, Navaparai (PO) Namakkal District. ...Petitioner in WP.No.140/09 M/s. Aruna Construction Contractors, 73, Murungapatti, Annaipalayam (PO) Rasipuram Taluk, Namakkal District. ...Petitioner in WP.No.141/09 M.Murugesan ...Petitioner in WP.No.142/09 M/s. J.V. & Co., 378, Samiyarkadu, Sankaragiri West (PO) Salem. ...Petitioner in WP.No.143/09 M.S.Veerappan ...Petitioner in WP.No.303/09 https://hcservices.ecourts.gov.in/hcservices/ M.Raju ...Petitioner in WP.No.304/09 P.V.Mohan ...Petitioner in WP.No.305/09 M.Balu ...Petitioner in WP.No.307/09 C.Chandran ...Petitioner in WP.No.308/09 M/s.R.B.K. Constructions, 3/52, B1, Counter Street, R.B.K. Constructions, Pottanam (PO) Senthamangalam (via) Namakkal. ...Petitioner in WP.No.309/09 M.Krishnamoorthy Manian ...Petitioner in WP.No.310/09 M/s. M.S.R. & Co., 5/46B, P.Mannurpalayam (PO) Salem ...Petitioner in WP.No.468/09 R.Perarasu ...Petitioner in WP.No.469/09 T.Raju ...Petitioner in WP.No.470/09 R.Semba Gounder ...Petitioner in WP.No.471/09 K.K.Ponnuswamy ...Petitioner in WP.No.482/09 J.Vijayakumar ...Petitioner in WP.No.483/09 N. Balasubramanian ...Petitioner in WP.No.484/09 D. Ramamoorthy ...Petitioner in WP.No.567/09 M/s. S.P.B. Construction Vennanthur (via) O Southapuram (PO) Namakkal District. ...Petitioner in WP.No.568/09 M/s. K.S.M Co., 2/22, Venanthur (via) O Southapuram (PO) Namakkal District. ...Petitioner in WP.No.569/09 K. Venkatachalam ...Petitioner in WP.No.570/09 https://hcservices.ecourts.gov.in/hcservices/ M/s.Balaji Construction 3/15, Karvathan Thottam Nallam palayam, Ponniayar (PO) Namakkal District. ...Petitioner in WP.No.571/09 S.Palaniappan ...Petitioner in WP.No.572/09 E.Anna ...Petitioner in WP.No.573/09 C.Ganeshan ...Petitioner in WP.No.574/09 M/s.K.N. Contractors, Minampali (PO) Namakkal District. ...Petitioner in WP.No.575/09 K.Sathasivam ...Petitioner in WP.No.576/09 N.P.K. Subramaniam ...Petitioner in WP.No.696/09 L.Duraiswamy ...Petitioner in WP.No.697/09 K.M.Ramaswamy ...Petitioner in WP.No.698/09 S.Easwaran ...Petitioner in WP.No.699/09 P.Palaniswamy ...Petitioner in WP.No.700/09 K.V.Ramaswamy ...Petitioner in WP.No.701/09 P.Mani ...Petitioner in WP.No.702/09 R.Periyaswamy ...Petitioner in WP.No.703/09 M/s. K.M. Palaniswamy & Co., rep by its partner K.M. Palanisamy Kolathan Valasu, Kovicplayam (PO) Kangikovil (via) perundurai Taluk, Erode District. ...Petitioner in WP.No.2416/09 M/s.Shanthi Constructions No.26, Trichy Road, Kannampalayam, Coimbatore. ..Petitioner in WP No.9921/2009 https://hcservices.ecourts.gov.in/hcservices/ M/s. K.G.Lakshmipathi & Co, 1C Gleneden Place, 813, (New No.310) P.H.Road, Kilpauk, Chennai-10. ..Petitioner in WP No.9922/2009 Sri Mohan Reddy No.1A Ist East Cross Road, Gandhi Nagar, Vellore 632 006 ..Petitioner in WP No.9923/2009 M/s.Murali & Co., 1A Kamarajar Street, Mukkonam,Causeal,Ooty -643006 ..Petitioner in WP 9924/2009 M/s. Rangarajan Constitutions No.180C Venkatesapuram, Peramabalur ..Petitioner in WP No.9925/2009 U.Narayanan ..Petitioner in WP No.11094/2009 The Nammakkal District High Ways Contractor Association, Raja Oil Mill 23B Trichengode Road, Namakkal 637001 ..Petitioner in WP No.11225/2009 M/s.K.G.M. & Co., rep. by its Managing Partner R.Kandasamy No.80/1, K.S.Road, Perundurai 638052 Erode District ..Petitioner in WP No.11912/2009 M/s. K.S.P.& Co., rep. by its Managing Partner R.K.Shanmugasundaram, No.666/1, Near Thendral Nagar, Perundurai,Kunnathur Rod, Erode District. ..Petitioner in WP No.11913/2009 M/s. V.R.P.constructions rep. by its Partner, S.Selvaraj, No.12, Nalliappa Street, Erode. ..Petitioner in WP No.12697/2009 https://hcservices.ecourts.gov.in/hcservices/ M/s. Saravana Gounder No.15/157, Palakkad Road, Madukkarai,Coimbatore 641 105 ..Petitioner in WP No.13174/2009 M/s.C.K.Rajan & Jawahar C158, 6th Cross, Thillainagar, Trichy-620018 ..Petitioner in WP No.13175/2009 M/s. Gurumurthy Engineering Entrer Prises rep.by its Proprietor, 7/3, Ring Road, Ashok Nagar, Chennai 600 083. ..Petitioner in WP No.25871/2009 V.P.Ramasamy Contractor, Ponnamama Pudur Patrtathaiayur Kuttai, Namakkal District ..Petitioner in WP No.30122/2008 A.Sekthivel 6/21, Kottakadupudur, Rayarpalayam Post, Tiruchengode Taluk, Namakkal District. ..Petitioner in WP No.30123/2008 The Union of India, rep.by the Secretary, Ministry of Finance, New Delhi. .. 1st Respondents in W.P.No.17101/10 17102/10, 51/09,52,53,54,138,139, 140, 141, 142, 143, 303, 304, 305, 307, 308, 309, 310,468, 469,470, 471,483,484,567,568,569,570,571,572, 573,574,575,576,696,697,698,699,700, 701,702,703,2416,9921,9922,9923, 9924,9925/09,11094/09,11912,11913, 13174,13175,25871/09,30122,30123/08 The Superintendent (preventive) Office of the Assistant Commissioner of Central Excise Erode I, Division 81, Bharathi Nagar, Soolai, Veerapan Chatram P.O., Erode. ..2nd respondent in WP.No.17101/10 and 17102/10 2416/09, 11912/09, 11913/09. https://hcservices.ecourts.gov.in/hcservices/ Superintendent (Preventive) Office of the Deputy Commissioner of customs Central Excise & Service Tax, Erode, II Division, 81, Bharathi Nagar, Soolai,Veerappan Chatram Post Erode 638 004. .. 2nd respondent in WP.51,52/09,53,54 138,139,140,142,143,697,699,571, 13175/09,30123/08 Superintendent Officer of the Superintendent of Central Excise, Rasipuram Range, Rasipuram 637 408 .. 2nd respondent in WP.No.141/09,484 569/09 6th respondent in WP.11225/09 Superintendent Office of the Superintendent of Central Excise, Namakkal Range, 601, Dr.Sankaran Road, Namakkal. .. 5th respondent in WP.No.11225/09 and ..2ndrespondent in wp.No.303 309 306 305, 307 308 309 310 482 483 567 570 572 573 574 575 576 696 698 700 701 /09 Superintendent (Preventive) Office of the Commissioner of customs Central Excise & Service Tax, No.1, Foulle's Compound, Anaimedu, Salem 636001 .. 2nd respondent in WP.NO. 468/09, 469, 470, 471, 568, 702, 703/09, 30122/08 The Additional Commissioner Office of the Commissioner of Customs Central Excise & Service Tax 6/7 Aid Street, Race Course Coimbatore 641 018 ..2nd respondent in WP.No.9921/09 The Superintendent (Service Tax R & I) Office of the Commissioner of Customs Central Excise & Service Tax, Service Tax- Research & Intelligence wing,6/7 ATD Street, Race Course Road, Coimbatore 641 018. .. 2nd respondent in WP.NO.9922/09 https://hcservices.ecourts.gov.in/hcservices/ The Assistant Commissioner Office of the Assistant Commissioner of Central Excise, Vellore Division, Central Revenue Buildings, Marracks Maidan,Vellore 632 001. ..2nd respondent in WP.No.9923/09 and 3rd respondent in WP.No.11094/09 The Senior intelligence Officer Office of the Deputy Director, Directorate General of Central Excise intelligence registered unit, 53,Ist Main Road Meena Estate, Sowripalayam, Coimbatore 641028 .. 2nd respondent in WP.No.9924/09, 9925/09 13175/09 The Additional Commissioner Office of the Commissioner of Central Excise, Chennai-III 26/1 Mahatma Gandhi Road, Chennai 34. .. 2nd respondent in WP.o.11094/09 The Joint Commissioner Office of the Commissioner of Customs Central Excise & Service Tax No.6/7 AID Street,Race Course, Coimbatore 641 028. ..2nd respondent in WP.13174/09 The Additional Commissioner O/o The Commissioner of Service Tax Service Tax Commissionerate 692,MHU Complex, Nandanam Chennai 600 035. ..2nd respondent in WP.No.25871/09 WP.Nos. 9835 to 9841/10,8784 to 8787/10,8822 to 8824/10 9032 to 9034/10, 10238 to 10242/10, 11716, 11717/10 12022, 11225, 19348/10 and 12697/09. https://hcservices.ecourts.gov.in/hcservices/ This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorari, calling for the records on the files of the first respondent in Circular No.110/4/2009-ST, and quash the proceedings dated 23.2.2009 insofar as the petitioner is concerned. WP.1701/101702/10, 51 to 54/09, 138 to 143/09, 303 to 310/09, 468 to 471/09, 482 to 484/09, 567 to 571/09, 696 to 703/09, 2416/09, 9921 to 9925/09, 11094, 11225/09, 11912 & 11913/09, 12697/09, 13174/09, 13175/09, 25871/09, 30122/09, 30123/09. This Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari calling for the records on the file of the 2nd respondent herein. C.No.IV/16/182/2008 dated 12.04.2010 C.No.V/MMR/15/21/2009 dated 04.01.2010 C.No.IV/16/99/2008 Prev. dated 12.11.2008 C.No.IV/16/99/2009 Prev. dated 07.10.2008 C.No.V/MMR/15/33/2008 ST.Inv. dated 30.10.2008 C.No.V/MMR/15/32/08 ST.Inv. dated 30.10.2008 C.No.IV/16/99/08 Prev. dated 19.09.2008 C.No.IV/16/99/08 Prev. dated 07.10.2008 C.No.IV/16/99/08 dated 12.11.2008 O.C.No.506/08 dated 12.09.2008 C.No.IV/16/99/2008 Prev. dated 18.09.2008 C.No.IV/16/99/2008 Prev. dated 19.09.2008 O.C.No.1005/08 dated 24.11.2008 O.C.No.713/08 dated 15.09.2008 O.C.No.721/08 Prev. dated 15.09.2008 O.C.No.979/08 dated 24.11.2008 O.C.No.700/08 dated 15.09.2008 O.C.No.716/08 Prev. dated 15.09.2008 O.C.No.988/08 dated 24.11.2008 C.No.IV/06/68/2008 HPU dated 11.11.2008 C.No.IV/06/68/2008 HPU dated 11.11.2008 C.No.IV/06/68/2008 HPU dated 11.11.2008 C.No.IV/06/68/2008 Prev. dated 11.11.2008 O.C.No.707/08 dated 15.09.2008 O.C.No.703/08 dated 15.09.2008 O.C.No.439/08 dated 15.09.2008 O.C.No.700/08 dated 15.09.2008 C.No.IV/06/68/08 HPU dated 29.09.2008 O.C.No.504/08 dated 12.09.2008 C.No.706/08 dated 15.09.2008 https://hcservices.ecourts.gov.in/hcservices/ C.No.IV/16/99/2008 Prev. dated 27.10.2008 O.C.No.726/08 dated 15.09.2008 O.C.No.702/08 dated 15.09.2008 O.C.No.699/08 dated 15.09.2008 O.C.No.717/08 dated 15.09.2008 O.C.No.709/08 dated 15.09.2008 O.C.No.722/08 dated 15.09.2008 C.No.IV/16/99/2008 Prev. dated 07.10.2008 O.C.No.708/2008 dated 15.09.2008 C.No.IV/16/99/20008 (Prev) dated 07.10.2008 O.C.No.720/08 dated 15.09.2008 O.C.No.710/08 dated 15.09.2008 C.No.IV/06/68/2008 HPU dated 11.11.2008 C.No.IV/06/68/2008 HPU dated 03.10.2008 P.GOC.No.915/09 dated 06.01.2009 C.No.V/MRS/15/61/2008-STC Adj dated 06.05.2009 C.No.IV/02/02/2009-ST (RIW) dated 02.04.2009 C.No.IV/16/80/09 dated 07.05.2009 F.No.INT/OGCE/CBERU/1/2009/91 dated 26.02.2009 Show cause notice No.028/09 dated 15.05.2009, made in C.No.V/15/MMR/34/2009-STA, III c.No.IV/16/13/09 PGST dated 08.05.2009 P.G.O.C.No.304/08 dated 02.07.2008 C.No.V/Mrs/15/62/2008 - STC Adj. dated 10.06.2009 F.No.INT/OGCE/CBERU/1/2009/92 dated 26.02.2009 C.No.IV/9/699/2009 STC ADJN dated 25.11.2009 C.No.IV/06/68/2008 HPU dated 11.11.2008 C.No.IV/16/99/2008 Prev. dated 12.11.2008 respectively and quash the same as illegal and contrary to the provisions of law. For Petitioners : Mr.R.L.Ramani, Senior Counsel for Ms.R.Hemalatha (W.P.Nos.9835, 10238 to 10242/10, 12697/09 11912, 11913/09, 2416/09, 8784/10, 9032/10 11716, 11717, 12022) Mr.K.C.S.K.Balaji (W.P.Nos.30122, 30123/09, 51 to 54, 468 to 471, 482 to 484, 567, 576, 696 to 703,138 to 143, 303 to 305, 307, 310/09) https://hcservices.ecourts.gov.in/hcservices/ Mr.R.Saravana Kumar (WP No.11094/09) Mr.B.Raveendran (W.P.Nos.9921 to 9925, 11225, 13174, 13175, 25871/09) Mr.S.Lakshmanasamy (W.P.No.17101, 17102/2010) For Respondents : Mr.K.Ramakrishna Reddy (W.P.No.30122/09) Mr.S.Udayakumar for R2 in (W.P.No.9921/2009) Ms.P.Bhuvaneswari, SCCG (W.P.Nos.9835 to 9841, 10238, 10242/10 12697, 11912, 11913, 11225, 11094/10, 51 to 54, 138 to 143, 303 to 305, 307, 310/09, 12022/10, 19348/10. Mr.P.Mahadevan (W.P.Nos.463 to 471, 482 to 484, 567, 696 to 703/09) Mr.S.Yashwanth Senior Panel Counsels to the Central Government for R1 in WP No.25871/09. Mr.R.Mahadevan, SCCG Central Government Counsel. (WP Nos.2416/09, WP No.17101/10, 17012/10 COMMON ORDER The prayer in these writ petitions are either to quash the Circular No.110/4/2009-ST, dated 23.2.2009 or to quash the show cause notices/summons issued by the respective respondent calling for appearance/details pursuant to the said Circular. 2. The common issue raised in these writ petitions is, whether the road management, maintenance or repair services carried on by the petitioners, who are contractors, are liable to pay service tax from 16.6.2005 to 26.7.2009, when the Government of India in its notification No.23/2009 Service Tax, dated https://hcservices.ecourts.gov.in/hcservices/ 27.7.2009 has granted exemption from the service tax levy to all persons, who are doing management, maintenance or repair of roads. 3. The brief facts necessary for disposal of these writ petitions are as follows: (a) The petitioners are Road Contractors. They are claiming that they are not covered under the definition of maintenance and repair as defined under Section 65(64) of the Finance Act, 1994. The petitioners are engaged in laying new roads and also doing the job of patch work, which is specifically exempted under Section 65 (105)(ZZZZa). By the impugned circular, a clarification is issued stating that resurfacing, renovation, strengthening, relaying of roads and filling up of potholes will fall under the category of maintenance, and repair activities and is liable to tax under "Management, Maintenance and Repair Services" under section 65 (105)(ZZg) of the Finance Act, 1994. According to the petitioners any clarification issued by the department is binding on the lower authorities and therefore the said clarification is challenged in the writ petitions contending that the said clarification is contrary to the Finance Act, 1994. (b) It is also stated in the affidavit that the State Highways Authorities and Local Authorities, who are in charge of laying and relaying of roads in the State, regularly call for tenders for the said works. Tenders are awarded to the successful contractors. The Contractors are carrying on the work of road laying and relaying and maintenance for the past several years. The State Highways Department and Local Authorities are having necessary data regarding the execution of the works and the contractors on completion of the contract will hand over the roads to the respective authority. (c) According to the petitioners, the nature of the contract awarded falls under the definition of "Works Contract" under the TNGST Act, 1959, and TNVAT Act, 2006. Sub Clause (ZZZa) to Clause 65(105) of the Finance Act, 1994 was inserted by Section 134 of the Finance Act, 2007 with effect from 1.6.2007 which states that taxable service means "any service provided or to be provided to any person, by any other person in relation to the execution of the works contract, excluding works contract in respect of roads, airports, railways transport terminals, bridges, tunnels and dams". The petitioners are doing road repair works and they have not taken any registration for service tax and they are continuously assessed under TNVAT Act, 2006, for the levy of tax of deemed sale of goods in the works contract and they are paying the same. (d) According to the petitioners, prior to 16.6.2005, a service called construction service was defined under section 65 (30a) of the Act. Under the said provision, construction services does not include laying or relaying of roads. Therefore from 16.6.2005, construction service was named as commercial and https://hcservices.ecourts.gov.in/hcservices/ industrial construction services under Section 65(25b) of the Act. However, road laying or relaying are not included. Section 65(105) (ZZZa) of the Act as stated supra excludes works contract relating to roads, airports, railways transport terminals, bridges, tunnels and dams. It is the case of the petitioners that the Government thought fit to keep out the scope of service tax to the works connected thereto viz., repairing and relaying for the purpose of reducing the cost of the project and the first respondent by circular No.110/4/2009-ST dated 23.2.2009 stated that even now the laying of new road, widening of narrow road to broader roads, changing road surface, etc., are excluded from service tax. (e) The intention of the parliament specifically excluding the activities relating to the roads and the incidental works has been borne in mind by the first respondent while issuing notification No.23/2009 Service Tax, dated 27.7.2009 and for the earlier period only the respondents are demanding the details of road repair works and therefore the action of the respondents in demanding the details regarding the earlier period is unsustainable in view of the latest notification dated 27.7.2009. 4. The Assistant Commissioner of Central Excise, Salem has filed counter affidavit stating that the impugned Circular dated 23.2.2009 clarified the exclusion of maintenance or repairs of roads as there is no specific exemption for management, maintenance or repair of roads. Therefore the only conclusion possible is that the construction of road is not a taxable service, however, management, maintenance or repair of roads are in the nature of taxable service attracting service tax. Further contention raised in the counter affidavit is that by the enactment of Finance Act, 1994, the Central Government derived its authority from the residuary Entry 97 of the Union list for levying tax on services including taxes on service. By 88th Amendment to the Constitution of India, a new entry 92C was introduced in the Union list for the levy of service taxes. The department is now only collecting information from the petitioners and has not yet issued any legal demand from the petitioners and therefore the prayers sought for in these writ petitions are premature. Even if any demand is made, the petitioners have to exhaust the legal remedy available under the Finance Act, 1994, and therefore these writ petitions are not maintainable. 5. The learned Senior Counsel appearing for the petitioners submitted that when the road works are excluded from the provisions of the Service Tax, the incidental works viz., maintenance relating to roads also cannot attract service tax as these works are also carried out by the Government/Local Authority and if tax is payable for these kind of works, the Government/Local Authority have to incur more expenses and there https://hcservices.ecourts.gov.in/hcservices/ will be no purpose in collecting service tax for such work even if the same is appropriated between the Union Government and State Governments. The learned Senior Counsel also submitted that the object of granting exemption for the road works cannot be defeated by the impugned circular issued by the first respondent and realising the said position, subsequent notification was issued on 27.7.2009 which clearly show that at any point of time the contractors doing road works need not pay service tax. 6. The learned counsels appearing for the respondents on the other hand submitted that the notification dated 27.7.2009 is an exemption from paying service tax in relation to management, maintenance or repair of roads and the said exemption benefit cannot be applied retrospectively as claimed by the petitioners, particularly when the notification is not stating about the retrospective exemption. 7. I have considered the rival submissions made by the learned Senior Counsel for the petitioners as well as respective learned counsels for the respondents. 8. The issue to be decided in these writ petitions is, in the light of the notification issued on 27.7.2009 granting exemption from paying service tax for the works in relation to management, maintenance or repair of roads, whether the said exemption can be taken advantage of by the petitioners for the earlier period i.e, for the period from 16.6.2005 to 25.7.2009. 9. The facts in these cases are not in dispute. The contractors are doing road repair/maintenance works. The said works are awarded by the Highways Department or Local Bodies. It is an admitted case that for laying new roads, widening narrow roads and for changing road surface, no service tax is payable. Maintaining the already laid roads, viz., resurfacing, renovation, strengthening, relaying, filling potholes, etc., are carried on in the already laid roads which are called road maintenance. The repair/maintaining of the existing roads are also carried out by the Highways Department or Local Bodies through contractors. In the Notification dated 27.7.2009, the maintenance and repair of roads are exempted from paying service tax. The said notification reads as follows: "GOVERNMENT OF INDIA MINISTRY OF FINANCE (Department of Revenue) New Delhi, the 27th July, 2009 Notification No.24/2009-Service Tax https://hcservices.ecourts.gov.in/hcservices/ G.S.R.(E)- In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service, referred to in sub-clause (zzg) of clause (105) of section 65 of the Finance Act, 1994, provided to any person by any other person in relation to management, maintenance or repair of roads, from the whole of the service tax leviable thereon under section 66 of the said Finance Act. Sd/- xxxxxxxxxxxxxxxxxx Under Secretary to the Government of India" Thus, it is manifest that the Central Government on 27.7.2009 taking note of public interest granted exemption from paying service tax in relation to works namely management, maintenance/ repairs of roads under Sec.66 of the Finance Act, 1994. The said notification nowhere states that the exemption is granted with retrospective effect. It is well settled in law that unless a notification issued specifically stating 'with retrospective effect', such notification will operate only prospectively. The Division Bench of the Kerala High Court in the decision reported in 2009 (237) ELT 257 (Ker) (Commissioner of Central Excise v. Mustang Rubbers Industrial Estate) considered similar notification issued under section 5A(1) of the Central Excise Act, 1944, and held in para 3 as follows, "3. ............... The very purpose of Clause 5(a) to Section 5A is to cloth the Government with the power to grant benefit of any notification retrospectively wherever it is required or desirable. It is for the Government to consider whether a notification should be given retrospectively, and if so, up to what period and unless it is so provided, the Tribunal or even the High Courts have no power to grant retrospectivity for a notification in the interpretation process. We therefore, allow the appeals by quashing the orders of the Tribunal and restoring the original orders confirmed in first appeals." The same is the view taken by the Himachal Pradesh High Court in the decision reported in 2009 (236) ELT 47 (H.P.)(Commissioner of Central Excise v. Himachal Aluminium Pvt. Ltd.) in para 4 held that notification which may affect the rights of the parties are treated to be prospective in nature unless the notification itself https://hcservices.ecourts.gov.in/hcservices/ clearly indicates that it will have retrospective effect A similar notification was considered by the Supreme Court in the decision reported in 2007 (215) ELT 11 : (2007) 12 SCC 198 (Jay Mahakali Rolling Mills v. Union of India) and in paragraphs 6 to 10 (in SCC) held thus, "6. A bare reading of the circular clearly shows that it was intended to have prospective effect. 7. It is to be noted that in the Circular dated 31-3-1987 it has been stated that the “products like bars and rods made from such ship-breaking scrap would ‘now’ be exempt from excise duty”. The effect of the word “now” is that it is to operate henceforth. If the intention was to give retrospective effect, it would have been stated to be so specifically. 8. “Retrospective” means looking backward, contemplating what is past, having reference to a statute or things existing before the statute in question. Retrospective law means a law which looks backward or contemplates the past; one, which is made to affect acts or facts occurring, or rights occurring, before it comes into force. Retroactive statute means a statute, which creates a new obligation on transactions or considerations or destroys or impairs vested rights. 9. By the amendment relatable to notification on 27-3-1987, items which were earlier not