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2023 (5) TMI 390 - AT - Service TaxTaxability - Site formation and clearance, Excavation and Earth moving and demolition Service or not - short payment of service tax - irregular availment of CENVAT Credit - HELD THAT:- The learned adjudicating authority has only referred to the definition of the impugned service as defined in the Finance Act, 1994 and also relied upon the Board’s Circular to conclude that the activities undertaken by the appellant should fall under the taxable service of ‘Site Formation and Excavation Service’. The service tax liability is fastened under the statute, if the assessee is performing any service, which is in conformity with the definition of taxable services itemized in the Finance Act, 1994. It is not the case that the appellants themselves voluntarily obtained the service tax registration under the taxable category of ‘Site Formation and Excavation Service’. The show cause notice in these cases have proposed for recovery of the service tax under such taxable entry and the same was subsequently confirmed by the original authority in the impugned orders passed by him. In order to tax under the particular category of service, it is incumbent upon the adjudicating authority to discuss the scope/nature of work undertaken pursuant to the agreement vis-à-vis the true scope and meaning of the definition of that particular taxable service, in order to categorized under the appropriate levy of tax under that particulars heads of service. Since, levy of tax is dependent upon the scope of work, proper analysis is required to be done for ascertaining the correct classification of service for the purpose of levy and collection of the service tax. Since, this particular aspect has to be dealt with at original stage, which as admittedly has not been done, the matter should be go back to the original authority for a proper fact finding as to whether the activities under taken by the appellants should be classifiable under the taxable entry of “Site Formation Excavation and Clearance Service” under Section 65 (97a) of the Finance Act, 1994. Irregular availment of Cenvat credit etc. - HELD THAT:- Since, the issue of availment of Cenvat credit is dependent upon the nature of services provided by the appellants and their appropriate classification under the definition provided in this statute, we are also of the view that without determination of the correct applicability of the taxable entry, cenvat issue cannot be raised and the same in that case will be considered as premature. Short payment of service tax - HELD THAT:- The same is also determinable upon proper classification of the service which is yet to be done by the original authority as per present order. Thus, under such circumstances that particular issue of short payment of tax cannot also be addressed at this juncture. Appeal allowed by way of remand.
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