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2016 (11) TMI 516 - CESTAT MUMBAI

2016 (11) TMI 516 - CESTAT MUMBAI - TMI - Levy of service tax - scope of circular no. B1/6/2005 TRU - cleaning activity service - disposal of ‘fly ash’ emerging from thermal power plants - transportation of goods by road service - site formation and clearance, excavation and earth moving and demolition service - goods transport agency service - clearing agency service - Held that: - The evacuation involves transfer by the pipe-lines in slurry form and allowing the ash to be deposited in the desi .....

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griculture and mining. To the extent that some of these uses are to be encouraged, even at the cost of foregoing tax, in the larger interests of societal needs, the statute itself provides exclusion. The claim of the assessee that the circular supra suffices to limit the scope of tax does not stand the test of the statutory intent. The circular merely exemplifies the scheme of the tax entry. - Whether the services have been rendered to the project proprietor by the assessee? - Held that: - W .....

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appeal, appears to have confused the construction work for site formation and excavation and has confounded it further by presuming that even such work as is covered by the definition has been rendered to the power plant by being the project proprietor. Persons, in the context of levy of service tax, have to be identified in accordance with the specific service rendered. - Appeal dismissed - decided against Revenue. - APPEAL NOS: ST/415 & 439/2011 - Order No. A/90626-90628/16/STB. - Dated:- .....

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94, transportation of goods by road service for 2004-05 to 2008-09 taxable under section 65 (105) (zzp) of Finance Act, 1994, site formation and clearance, excavation and earthmoving and demolition service from 2007 onwards taxable under section 65 (105) (zzza) of Finance Act, 1994. It is alleged that even after it was pointed out by the tax authorities, registration was taken only for the goods transport agency service and clearing agency service on 16th September 2008 and 13th September 2009 r .....

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ion, excavation and earthmoving and demolition service. Penalties under sections 70 and 78 of Finance Act, 1994 have also been imposed. Assessee carried the matter to the first appellate authority only on the taxability, under section 65(105(zzza) of Finance Act, 1994, of the gross consideration received for raising the height of the ash bund from 575.75 m to 581.75 m being 45% of the contract value of about ₹ 6,66,98,215/- and contested the penalties. The amounts confirmed under the other .....

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amp; Sons contests the confirmation of penalty to the extent of reduction permissible under in section 78 of Finance Act, 1994. Revenue is in appeal against the quashing of demand, interest and penalty relating to rendering of site formation and clearance, excavation and earthmoving and demolition service. 4. Appellant-assessee claims that the impugned order, by failure to articulate the option of paying penalty at 25% of the amount imposed, had denied them the privilege and prays for an unequiv .....

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lty under the second proviso shall be available only if the amount of penalty so determined has also been paid within the period of thirty days referred to in that proviso: we notice that, notwithstanding the mandate to impose penalty equal to the tax confirmed, the assessee is eligible for the privilege suo motu upon compliance with condition that payment is effected within the stipulated period. Neither is a separate inclusion warranted or necessary. Consequently, we are unable to appreciate t .....

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held by the original authority. The definition of the service taxable under section 65(105)(zzza) in section 65 of Finance Act, 1994 (97a) Site formation and clearance, excavation and earthmoving and demolition includes,- (i) Drilling, boring and core extraction services for construction, geophysical, geological or similar purposes; or (ii) Soil stabilization; or (iii) Horizontal drilling for the passage of cables or drain pipes; or (iv) Land reclamation work; or (iv) Contaminated top soil stri .....

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ded from its ambit under any circumstances. Pointing out that the original authority has isolated the excavation activity in the work order, and which the first appellate authority had incorrectly considered to be intrinsic to raising the height of the ash bund , it is contended that the amount confirmed by the original authority is liable to be recovered. 7. We have heard both sides and perused the statutory provisions. Contention of the assessee is that the first appellate authority had carrie .....

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height of 575.75 m which it was considered necessary to raise to 581.5 m for increase of storage capacity. The disposal of fly ash emerging from thermal power plants is a statutory requirement under the environmental laws. The evacuation involves transfer by the pipe-lines in slurry form and allowing the ash to be deposited in the designated area with the water to be drained out thereafter. With the visit of the first appellate authority, the felicity of an elaborate description of the structur .....

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g of the base and excavation which are elements in the description of the taxable service in section 65 (105)(zzza) of Finance Act, 1994, viz., taxable service means any service provided or to be provided to any person, by any other person, in relation to site formation and clearance, excavation and earthmoving and demolition and such other similar activities and the term service provider shall be construed accordingly. 10. The aim and purpose of the taxable entry, evident from the circular supr .....

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ent. The circular merely exemplifies the scheme of the tax entry. 11. We have no doubt that the contract was for enhancement of storage facility but our attention has not been drawn to any statutory provision or settled law that a taxable service perceivable within the contract for delivery of a structure cannot be isolated for fitment within a tax entry in Finance Act, 1994. Per the itemization in the work order, ₹ 8,79,984/- has been received towards clearing the site and removal of soil .....

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