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2020 (3) TMI 850 - AT - Service TaxLevy of Service Tax - Cleaning Activity - removal of fly ash from the pond - HELD THAT:- The cleaning activity has been defined under Section 65(24b) of the Finance Act. “Cleaning activity” means cleaning, including specialized cleaning services such as disinfecting, exterminating or sterilizing of objects or premises, of- (I) commercial or industrial buildings and premises thereof: or (ii) factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and premises thereof, But does not include such services in relation to agriculture, horticulture, animal husbandary or dairying; - thus, cleaning service has been also defined in the Board’s Notification F. No. B1/6/2005-TRU dated 27/07/2005. Also, in the present case, the activity of excavation and transportation of fly ash from the pond, for channeling the slurry water-flow cannot be termed as “cleaning activity” in terms of Section 65 (24B) of the Finance Act. The Respondent is not clearing the fly ash with the objective of cleaning the pond or free the pond from contamination. Fly ash is being excavated and transported to the specified areas as per the contract. Works Contract service - sub-contract - work done as a sub contractor for McNally Bharat Engineering Co. Ltd., Purba Medinipur Zilla Parishad and Rites Ltd. - HELD THAT:- The contracts of railway in respect of Rites Ltd. under section 65(25b) of the Finance Act 1994. In the case of Purba Medinipur Zilla Parishad which relates “evacuation of ash pond” and it’s transportation, this bench has already decided the issue in the case of the same assessee vide PURBA MEDINIPUR ZILLA PARISHAD VERSUS COMMISSIONER OF C. EX., HALDIA [2010 (5) TMI 369 - CESTAT, KOLKATA]. Also, It cannot be urged that there was any wilful suppression of facts with an intention to evade payment of duty as is the requirement of Section 73(1) of the Act. The Learned Commissioner has erred in confirming the demand and invoking the provision of 73(1) of the Finance Act 1994 as well as in imposing the penalty u/s. 78 and u/s. 76 of the Finance Act 1994 - the impugned order cannot be sustained and the same is set aside - Appeal allowed - decided in favor of appellant.
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