TMI Blog2023 (6) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... work, Contaminated top soil stripping work and Demolition and wrecking of building, structure or road. Whereas from the documents submitted by the appellant, it is found the entire contract was for lum sum price for carrying out not only site grading but also construction of Roads, Boundary wall, Drains lines and associated works for crude oil terminal of Bina Refinery Project - it is found that without the site cleaning, road, boundary wall and drainage line cannot be constructed. The contract specifically provide site grading for the reason that road, boundary wall and drainage line should be constructed after completion of site grading works. Clearly, the main object of contract was for construction of road, boundary walls and drainage line. The appellant s activity is not covered by the definition of site formation and clearance, excavation and earth moving and demolition service. The majority of work relates to civil work in the nature for construction of road, boundary wall and drainage lines. The essential character of this composite work is reflected as that of construction service. Thus, instead of site formation and clearance, excavation and earth moving and demo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Bina Refinery Project at Vadinar in the state of Gujarat. On the scrutiny of the documents, it appears that appellant have provided the service relating to Site Formation/ gradation and during the year 2007-08 received an amount of Rs. 4,31,80,708/- in respect of the above contract and accordingly service tax amounting to Rs. 53,37,135/- was payable under the category of Site Formation and Clearance, Excavation and Earthmoving and Demolition Service on such services appellant had short paid/ not paid the Service tax of Rs. 53,37,135/-. Accordingly, show cause notice dated. 19.10.2012 was issued to the appellant proposing service tax demand and penalties under Section 76,77 and 78 of the Act. The adjudicating authority namely the Commissioner of Service Tax Vadodara I, confirmed the entire demand of the service tax raised and also imposed penalty vide impugned Order-in-Original dated 28-03-2013. Being aggrieved by the said Order-in-Original, the appellant filed the present appeal before us. 2. Shri Hardik Modh, Learned Counsel appearing on behalf of the appellant submits that the Ld. Commissioner erred in classifying the service in dispute under the category of site fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogical or similar purposes, or ii. Soil Stabilization, or iii. Horizontal drilling for the passage of cables or drain pipes, or iv. Land reclamation work, or v. Contaminated top soil stripping work, or vi. Demolition and wrecking of building, structure or road, 2.3 In the present case, the contract was not only for site grading, but it includes construction of road, boundary wall drains and associated works for crude oil terminal at Vadinar. The construction of road, boundary walls and installation of drainages are not covered under the category of site formation. Site grading work undertook by the Appellant was for construction of road, boundary wall and installation of drainage line. Since site grading work undertaken by the appellant precedent to the work of construction, it does not mean that the entire contract can be classified under the category of site formation. 2.4 He also submits that revenue ought to have appreciated that the definition of Commercial or Industrial Construction Service defined under Section 65(35b) of the Act covers construction of building or civil structure or construction of pipelines or conduits and therefore, the revenue erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s along with the requisite documents as required under the law periodically. In such facts, burden was upon the department to prove that the Appellant has wrongly classified service within normal period of limitation. 3. Shri V.G. Iyengar learned Superintendent Authorised representative reiterates the findings of the impugned order. 4. We have considered the submissions made by both the sides and perused the records. In the present case, the issue to be decided is that the service in question is classifiable under the category of Site Formation and clearance, Excavation and Earth Moving and Demolition service as contended by the revenue or under the category of Industrial and Commercial Construction service as contended by the appellant. As per the facts of the case, the appellant have carried out the service in terms of bidding documents No. 1204/T-64/06-07/RAL/04 and No. 6743/T-174/05-06/SKK/01.As per the said documents we noticed that during the disputed period appellant have undertaken the work of site grading, Roads, Boundary Wall, Drain and associated works of Crude Oil Terminal of M/s Bina Refinery Project at Vadinar in the state of Gujarat. As per Section 65(97a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge lines. The essential character of this composite work is reflected as that of construction service. Thus, instead of site formation and clearance, excavation and earth moving and demolition service, this service is appropriately classifiable under Commercial or Industrial Construction Services . The service tax demand from the appellant by treating their activity as taxable under section 65(97a) as site formation and clearance, excavation and earth moving and demolition service is not sustainable. 4.3 We also find that in the present matter demand is also not sustainable on limitation. It is undisputed that the appellant had been rendering the services and has been paying service tax on disputed service under the head construction services and also filing ST-3 returns regularly with the departmental authorities. If a tax is chargeable, in order to recover the service tax not paid or short paid a notice has to be issued under Section 73 of the Act. This is the only remedy available to the Revenue. The notice can be issued within the normal period of limitation only unless the elements of fraud or collusion or wilful statement or suppression of facts or contravention of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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