TMI Blog2019 (5) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... st 16.06.2005. The Adjudicating authority has failed to consider the said aspect. Hence, the confirmation of demand for painting work of ₹ 33,660/- is liable to be set aside - the differential demand in respect of maintenance of railway track is hereby set aside. Canal closure - HELD THAT:- The adjudicating authority has failed to consider that this activity was not for commercial purposes despite acknowledging that the canal site was owned by the Government of Rajasthan. The order confirming the demand of ₹ 34,379/- is, therefore, liable to be set aside. Excavation services - HELD THAT:- The appellants have relied upon the certificate given by Ghiya services, the sister concern of the appellant declaring that they have duly paid service tax on the taxing higher income received from DCM Shriram Consolidated Ltd. to whom the taxis taken on rent from Khandelwal Construction Co. during the year 2004-05 and 2005-06 were supplied also that no service tax credit has been taken by them. The document is very much on record. But the adjudicating authority has failed to consider the same - Once the service tax liability stands already discharged, any confirmation of the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authorities have wrongly held the services of the appellant while holding it to be the cargo handling services. Despite that the activity is only of loading of urea and charcoal and unloading the collection of loose urea that too through a conveyer belt of the factory. The issue is no more res integra. The demand of ₹ 5,36,325/- is prayed to be set aside for the said services. 4. With respect to commercial and industrial services, the appellant has submitted that liability has already been discharged while availing the benefit of Notification No.15/2004 dated 10.09.2004. This demand of ₹ 13,54,295/- has been wrongly confirmed. The decision of Larger Bench in the case of Bhayana Builders (P) Ltd. vs. CCE reported in 2013 (32) STR 49 is impressed upon. 5. With respect to maintenance and repair services, it is submitted that the services fall under the completion and finishing services and as such cannot be categorized as repair and maintenance services. Otherwise also the repair and maintenance also not taxable prior to 16.06.2005 and the liability post the said date has already been discharged, that the demand of ₹ 33,6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is prayed to be dismissed. 11. After hearing both the parties, the activity-wise findings are as follows:- CARGO HANDLING SERVICE: 11.1 The definition is important for the purpose, which defines Taxable Services and particularly Cargo Handling Services as under:- Clause 90 .............taxable services means any service provided (zr) to any person by a Cargo Handling Agency in relation to Cargo Handling Services. The Dictionary meaning of word Cargo defined in various Dictionaries are as under :- Webster s Dictionary: Cargo - Goods and Merchandise taken on abroad, vessel, aircraft etc. Webster s IX New Collegiate Dictionary: Cargo - Goods or Merchandise conveyed in ship, aeroplane or vehicle. Thus, it is evident that word Cargo means carriage of luggage in ship, vessel or aircraft. 11.1.1 In the present case, the appellants have provided manual labour for loading of urea and charcoal and thereafter for unloading the collection of loose urea for the internal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service recipient, the taxable value can be computed by including the value of such material but denial of abatement on this ground that some material were provided by the service recipient is clearly against the law and is against the principle of natural justice too. The appellant has already deposited the full amount of tax by computing the value as prescribed under notification. The adjudicating authority has illegally denied the benefit of abatement available to the appellant and, therefore, the order so passed should be set aside. 11.2.1 The Commissioner (Appeals) has mentioned that while availing the benefit of Notification No.15/2004, the appellant was required to include the value of free supply. We perused both these Notifications in the light of the Board Circular No.80/102004/ST dated 17.09.2004 wherein it is recorded as follows:- 13.5 The gross value charged by the building contractors include the material cost, namely, the cost of cement, steel, fittings and fixtures, tiles etc. Under the Cenvat Credit Rules, 2004, the service provider can take credit of excise duty paid on such inputs. However, it has been pointed out that these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EXCAVATION SERVICES 11.5 Undisputedly, the demand has been raised based on Bill No.1383 dated 21.03.2006 apparently the same pertains to the work of extension of godown, which from no stretch of imagination can be called as excavation. Mere mention in the said bill of excavation of godown is mere way of nomenclating by the service provider or the recipient. The same cannot be a ground for denying that the service provided was merely of extension of the godown. There is otherwise no dispute to the said fact. Confirmation of the demand merely on the nomenclature of the service is liable to be set aside. Therefore, the demand of ₹ 1,42,978/- is also hereby set aside. RENT-A-CAB SERVICE 11.6 The appellants have relied upon the certificate given by Ghiya services, the sister concern of the appellant declaring that they have duly paid service tax on the taxing higher income received from DCM Shriram Consolidated Ltd. to whom the taxis taken on rent from Khandelwal Construction Co. during the year 2004-05 and 2005-06 were supplied also that no service tax credit has been taken by them. The document is very much on r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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