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TMI Blog2017 (11) TMI 1263X X X X Extracts X X X X X X X X Extracts X X X X ..... providing the aforesaid service to BSNL, M/s Tata Tele Services and others during the period 2005-2006. The adjudicating authority confirmed the demand of service tax on the basis of agreement/contracts provided by the assessee under the category of site formations and clearance, excavation and earthmoving and demolition service involving horizontal drilling passage of cables only when such drilling was done by using machines, therefore, the demand of service tax was confirmed against the assessee. On appeal before the Ld. Commissioner (A) after verifying the documents held that the assessee has done the horizontal drilling by using the drilling machines in respect of M/s Tata Tele Service and not for others on the basis of the certificate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drilling is involved. Furthermore, their activity is not an activity preparatory in nature for the construction of building, factory or any civil structure. Hence these are also not covered Din the expanded scope of these services as clarified in the above said Board's circular. The said finding is basis on the certificate provided by the respondent and the same has not been controverted by the Revenue. The Ld. Commissioner (A) has been rightly granted the benefit to the assessee that the digging work has been done by the appellant manually and not by the HDD Machines, therefore, the impugned order is to be upheld. He further submits that the Revenue has not challenged the order of the Ld. Commissioner (A) that the activity has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k is being executed by the appellants without using HDD machine as certified by the various Divisions of BSNL and also evident from the bills raised by the appellants in that regard. Therefore, services provided by the appellant as discussed above are not covered in the definition of the taxable service since no horizontal drilling is involved. Furthermore, their activity is not an activity preparatory in nature for the construction of building, factory or any civil structure. Hence these are also not covered in the expanded scope of these services as clarified in the above said Board's circular. 9. As there is an evidence to the effect that the respondent has executed the work without HDD machines, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orizontal drilling for the passage of cables or drain pipes; or (iv) Land reclamation work, or (v) Contaminated top soil stripping work; or (vi) Demolition and wrecking of building, structure or road, But does not include such services provided in relation to agriculture, irrigation, watershed development and drilling, digging, repairing, renovating or restoring of water sources or water bodies; It would be seen that the definition is an inclusive definition. The scope of service is wide enough and items at S. No. (i) to (vi) are illustrative only and not exhaustive. 13. Admittedly, the said work of tele cable laying is preceded by process of excavating trenches either with the help ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, and machines and implements and not exclusively manually. Besides, the adjudicating authority has given a finding of fact that the nature of job being executed by the noticee is same in respect of M/s.Tata Tele Services, M/s. BSNL and M/s.HFCL. 15. In view of the above, the activity of the respondent is clearly covered under Sr.No.(iii) of the definition of service under Section 65 (97a). The definition in no way and nowhere implies that only such horizontal drilling is covered thereunder which is done using drilling machines. Hence, I find that reasoning adopted by the Commissioner (Appeals) for setting aside the demand of service tax is totally untenable. 16. In view of the above, the appeal filed by the Revenue is allowed. 16. As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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