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TMI Blog2015 (1) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... lex' and 'Commercial or Industrial Construction Service' vide Registration No. AACFT5646HST001, w.e.f. 3-3-2009. It was alleged that during the period from October, 2011 to March, 2011, the appellants had provided the following taxable services to M/s. Guru Gobind Super Thermal Plant, Ropar (for brevity 'the Thermal Plant') such as cleaning of boiler area, Station service building in Nuhon Colony, cleaning of Tech and non-Tech Building Plant Area and repair modification of cabin for lift control panel restoration of path ways along the railway track for which they had been allotted work orders. It was alleged by the department that the said services fell under the category of 'Cleaning Services' and 'Management, Maintenance or Repair Services' and liable to service tax. Even on repeated requests the appellants failed to provide the details of services provided by them and accordingly, the value of services were obtained from the Thermal Plant. It was revealed that the appellants had allegedly provided taxable services of the above mentioned categories for which they had received an amount of Rs. 33,22,703/-. 2.1 Accordingly, the appellants were issued show cause notice propos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uildings/messes which stand exempted from service tax; that cleaning of toilets and sewerage had been exempted from service tax vide Notification No. 25/2012, dated 20-6-2012 as these services were placed under the negative list; v. that thermal plant was the property of Punjab Govt., and hence being a public concern, no service tax was leviable and relied upon the decision in the case of Nagarjuna Construction Co. v. CCE - 2010 (19) S.T.R. 259 (T); vi. that had there been service tax on the said services demands would also had been raised against services providers providing services to other thermal plants at Lehra Mohabbat and Bathinda and during the same period service tax should be uniformly levied. 4. Personal hearing in the cases was held on 22-1-2014. Sh. Mohinder Singh, Advocate appeared on behalf of the Party and reiterated the submissions made in their appeal. He was asked to provide copy of work order dated 13-10-2009 which was provided vide letter dated 25-1-2014. 5. I have gone through the appeals, cross objections filed by the party and the submissions made by the Party at the time of personal hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Act, 1994. "Cleaning activity" has been defined under clause (24b) of section 65 of the Finance Act, 1994. 9.2 Generally contracts/agreements are entered into for cleaning of commercial complexes such as multiplexes, shopping complexes, office complexes, industrial buildings etc. The contracts/agreements may be in writing or may be unwritten. The gross amount charged for such cleaning would be leviable to service tax. This taxable service includes, - (i) specialized cleaning services such as disinfecting and exterminating, sterilization of objects, etc. Such cleaning services would be taxable when performed for commercial or industrial buildings and their premises, factories, plant and machinery, tank or reservoir of such buildings; (ii) Disinfecting, exterminating insects, rodents and other pests and fumigation services in respect of specified premises would be liable to service tax. In respect of multi-storeyed commercial buildings, window cleaning is a specialized service. Window cleaning services, including exterior window cleaning using swing stages would be liable to service tax; (iii) F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges for the same were statutory in nature. This essence can be derived from C. B. E. & C.'s Circular No. 80/10/2004-S.T., dated 17-9-2004 wherein it was clarified as under : "Generally, government buildings or civil constructions are used for residential, office purposes or for providing civic amenities. Thus, normally government constructions would not be taxable. However, if such constructions are for commercial purposes like local government bodies getting shops constructed for letting them out, such activity would be commercial and builders would be subjected to service tax." 6.4 Plain reading of the above would reveal that the circular goes on to clarify that Govt. Building or civil constructions used for providing civic amenities would not be taxable. But the Circular also clarifies that even Govt, buildings used for commercial activity would be liable to service tax. In the instant case, the services have been provided to an industry engaged in business and commerce. Though the issue referred to and relied upon by me is in respect of construction services but the essence of the same is that if the Govt. bodies avail the services in respect of buildings to be used for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction of pathways along Railway track would not be termed as services provided in respect of Railway. The track had been laid inside the thermal plant for business activity namely of-loading of cargo. The definition of Commercial or Industrial Construction Service provides exclusion to those services of construction which are provided in respect of railways which is not the case here. Even otherwise the services have been provided for construction of pathways along the railway track and thus could not be termed as services provided in respect of railways. Hence, such services would not fall under the exclusion clause of the definition of 'Commercial or Industrial Construction'. 7.2 Routine cleaning of Station Building The contention of the appellants is that in the above building no machinery cleaning was done by them and that as per information received from the Thermal Plant vide letter dated 28-2-2013, machinery cleaning was being done by specialized firms who were paying service tax but pocha type cleaning done by them was not covered under the definition of cleaning services. I observe that the definition provides for the activities covered in the definition and specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be liable to service tax. The appellants have tried to break up the services provided in respect of commercial concern itemwise, i.e. plant, machinery, toilets, canteens etc. which is not permissible. All the units have to be taken together in the light of the contract and their existence in the Commercial premises and the words used in the definition of 'cleaning activity' are 'Commercial building' which means that the services ought to be provided in respect of Commercial building and premises thereof. Further, as per the contract the Canteens, toilets and sewerage lines to be cleaned were located in the commercial building of Stage I, II and III of the Thermal Plant. Hence, the appellant's plea is of no use to them and the cleaning services provided by the appellants in respect of said building were liable to service tax. 8. In view of the above the demand against the appellants is recalculated, after excluding the value of services provided in the Nuhon colony, as discussed in Para 7 above, as under : S. No. Service Rendered Gross Amount S.T. Payable @ 10% Edu. Cess @ 2% of ST S.H.Ed. Cess @1% of ST Total 1 Routine cleaning of boiler area, station ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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