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2015 (1) TMI 1094 - CESTAT NEW DELHIWaiver of pre deposit - Exemption under Notification No. 17/2005-S.T. - site formation and clearance, excavation, earth moving and demolition services - Held that:- in respect of the services of excavation provided in respect of the Hydro-electric Dam Project being executed by M/s. L&T Ltd., the appellant’s plea is that this service is fully exempt from Service Tax under exemption Notification No. 17/2005-S.T., dated 7-6-2005 which exempts from the whole of the Service Tax leviable thereon, the service of “site formation and clearance, excavation, earthmoving and demolition and such other similar activities” provided to any person by any other person in course of construction of roads, airports, railways, transporter terminals, bridges, tunnels, dams, roads and ports. The excavation work carried out by the appellant is in respect of the Hydro-electric Power Generation Plant, which is part of the Hydro-electric dam. We are, therefore, of the prima facie view that this excavation job, though done for excavating the earth to create ample space for building cemented structure for powerhouse and tunnel (tailpool), which is an essential part of the Hydro-electric dam, has to be treated as in course of construction of dam, and would be eligible for exemption under Notification No. 17/2005-S.T. So far as the service of site preparation provided to WBHIDC is concerned, there is no explanation from the appellant as to why the value of this service was not declared in the S.T.-3 Returns and why the Service Tax was not paid. The non-payment of Service Tax on the service provided to WBHIDC was detected only during scrutiny by the Department in course of audit conducted during June, 2010. Therefore, we are of the prima facie view that the appellant have suppressed the relevant facts from the department and hence, extended period would be invokable and the show cause notice dated 14-9-2011 would not be hit by the ratio of the Apex Court’s judgment in the case of Nizam Sugar Mills Ltd. (2006 (4) TMI 127 - SUPREME COURT OF INDIA) as the show cause notice for the period 1-4-2005 to 31-3-2012 had to be issued separately in September, 2011, as the information for this period was not provided by the appellant earlier. As regards the show cause notice dated 11-10-2011 and 8-10-2012 in respect of site preparation services provided to WBHIDC, the same are within time. Thus even if the service provided by the appellant to M/s. L&T Ltd. in respect of their Hydro-electric Dam Project are held as exempt from Service Tax under Notification No. 17/2005, still there would be Service Tax liability to the tune of about ₹ 3 crores in respect of service of site preparation provided to WBHIDC and hence, while granting waiver from the requirement of pre-deposit, Revenue’s interests have to be safeguarded to this extent. - Partial stay granted.
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