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TMI Blog2015 (1) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... elation to site preparation for construction of a housing complex by filling-up of low lying lands with earth. The services provided to M/s. L&T Ltd. were for carrying out Open Excavation of Surface Powerhouse and Tail Pool of a Hydro Electric Project and the purpose of excavating was to create ample space for building cemented structure for power house and tunnel, which is an essential part of a hydro-electric dam. According to the department, all the services provided by the appellant company to M/s. L&T Ltd. and WBHIDC are "Site Formation and Clearance, Excavation and Earthmoving and Demolition Services" taxable under Section 65(105)(zzza) read with Section 65 (97a) of the Finance Act, 1994. The Department was also of the view that since the services of "Excavation" provided to M/s. L&T Ltd. are not in the course of construction of dam but are in connection with the construction of Hydro-electric Generation Station, the same would not be exempt from Service Tax under Notification No. 17/2005-S.T., dated 17-6-2005. It is on this basis that four show cause notices dated 30-9-2010 for demand of Service Tax for the period from 1-4-2007 to 31-3-2009; dated 14-9-2011 for demand of Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in course of construction of a Hydro-electric dam as tail pool is a tunnel constructed below the surface area, that leads water from power house to river and power house is a closed heavy physical structure constructed below the surface when turbines are located that in a hydro electric dam project, power house and tail pool constitute an integral part in course of construction of the hydro-electric dam structure to hold back the water and generate electricity that in view of this, the services provided to M/s. L&T Ltd. would be exempt from Service Tax under exemption Notification No. 17/2005-S.T., dated 7-6-2005, which exempts site formation and clearance, excavation and earthmoving and demolition services and such other similar activities referred to in sub-section (1) of Section 65(105)(zzza) of Finance Act, 1994 provided to any person by another person in the course of construction of roads, airports, railways, transport terminals, bridges, tunnels, dams, ports from the whole of the Service Tax leviable thereon, that the department's contention that the job of open excavation of surface power house and tailpool is not in course of construction of dam but is the job in course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notices dated 11-10-2011 and 8-10-2012 for demand of Service Tax of Rs. 49,63,761/- and Rs. 3,63,417/- respectively, Service Tax demand confirmed in respect of these show cause notices also include the Service Tax demanded on the amount charged for dredging of the fish pond which is not taxable. Shri Batra, therefore, pleaded that the appellant have strong prima facie case in their favour and hence, the requirement of pre-deposit of Service Tax demands, interest thereon and penalty may be waived for hearing of the appeals and recovery thereof may be stayed till the disposal of the appeals. 4. Shri Amresh Jain, ld. Departmental Representative, opposed the stay applications by reiterating the findings of the Commissioner in the impugned order. With regard to Service Tax demand on the service of open excavation of surface power house and tail pool provided to M/s. L&T Ltd. he pleaded that this excavation activity is not in course of construction of dam but in course of construction of Hydro-electric Power Plant and hence, this activity of the appellant is not covered by exemption Notification No. 17/2005-S.T., as this exemption notification covers only the services of site f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Tailpool and to WBHIDC in respect of their housing projects where the services provided by the appellant was filling up of low lying lands by earth to make the same suitable for housing projects. We are of the view that the activity of the appellant in both the projects is covered by "site formation and clearance, excavation, earth moving and demolition and such other similar activities" taxable under Section 65(105)(zzza) of the Finance Act, 1994. However, in respect of the services of excavation provided in respect of the Hydro-electric Dam Project being executed by M/s. L&T Ltd., the appellant's plea is that this service is fully exempt from Service Tax under exemption Notification No. 17/2005-S.T., dated 7-6-2005 which exempts from the whole of the Service Tax leviable thereon, the service of "site formation and clearance, excavation, earthmoving and demolition and such other similar activities" provided to any person by any other person in course of construction of roads, airports, railways, transporter terminals, bridges, tunnels, dams, roads and ports. The excavation work carried out by the appellant is in respect of the Hydro-electric Power Generation Plant, which is par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent show cause notice dated 14-9-2011. It has, therefore, been pleaded on behalf of the department that the judgment of the Apex Court in the case of Nizam Sugar Ltd. (supra) would not be applicable in respect of the show cause notice dated 14-9-2011. Prima facie, we find that so far as the service of site preparation provided to WBHIDC is concerned, there is no explanation from the appellant as to why the value of this service was not declared in the S.T.-3 Returns and why the Service Tax was not paid. The non-payment of Service Tax on the service provided to WBHIDC was detected only during scrutiny by the Department in course of audit conducted during June, 2010. Therefore, we are of the prima facie view that the appellant have suppressed the relevant facts from the department and hence, extended period would be invokable and the show cause notice dated 14-9-2011 would not be hit by the ratio of the Apex Court's judgment in the case of Nizam Sugar Mills Ltd. (supra) as the show cause notice for the period 1-4-2005 to 31-3-2012 had to be issued separately in September, 2011, as the information for this period was not provided by the appellant earlier. As regards the show ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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