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2023 (12) TMI 908 - CESTAT NEW DELHIClassification of service - cleaning activity or not - services relating to fumigation of export containers - HELD THAT:- A bare perusal of the definition of ‘cleaning activity’ under section 65(24b) of the Finance act would indicate that it means cleaning, including specialized cleaning services such as disinfecting, exterminating or sterilizing of objects or premises of commercial or industrial buildings and premises thereof; or factory, plant or machinery or buildings, but would not include such services in relation to agriculture, horticulture, animal husbandry or dairying - In the instant case, the activity of fumigation of containers was not of commercial or industrial building or premises thereof. It would, therefore, not be covered by the definition of cleaning activity under section 65(24b) of the Finance Act. Circular dated 12.01.2011 was amended by Circular dated 20.01.2011 by deleting the word ‘Circular’ at paragraph 2(b) and replacing it by ‘Notification’ - A perusal of the aforesaid Circular shows that fumigation of export cargo would not satisfy the statutory definition of cleaning activity under section 65(24b) of the Finance Act and it is only as a matter of abundant caution that the government had issued the Notification dated 06.10.2007 which was subsequently amended on 29.11.2007 and that the wordings of the Notification cannot be used to interpret the scope of the service taxable under section 65(105) (zzzd) of the Finance Act. The Commissioner (Appeals) completely fell in error in holding that because the Notification dated 06.10.2007 exempts the cleaning activity services, it should be held that they were taxable and for claiming exemption the conditions have to be satisfied. The Commissioner (Appeals) also fell in error in misreading the Circular dated 12.01.2001 - Once it is clear that fumigation of export containers would not fall within the definition of ‘cleaning activity’ defined under section 65 (24b) of the Finance Act, service tax could have been levied. The impugned order dated 04.05.2018 passed by the Commissioner (Appeals) is set aside - Appeal allowed.
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