TMI Blog2022 (3) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... ommercial buildings and premises thereof would not be covered within the purview of Service Tax under this category. The residential Colony would therefore not be covered under the description premises appearing in Section 65 (24b). Cleaning services or horticulture - Cutting of trees, grass shrubs etc. and maintain it over a period of time in the Gas collection Centre of the service recipient namely ONGC - HELD THAT:- The activity of the appellant cannot be treated as horticulture. It is apparent that the activity undertaken by the appellant is in the nature of cleaning activity and therefore covered under the definition of this service as defined in Section 65 (24b) of the Finance Act, 1994, the demand of this ground is therefore upheld. Clearing services as such Grass, Bush, Jungle cutting at Area-III of ONGC Ank. And regular maintenance as tender documents - HELD THAT:- There is absolutely no doubt that the said activity amounted to provision of the cleaning services as defined in Section 65 (24b) of Finance Act, 1994 and there could not have been any bonafide doubt to in that regard - there are no merit in the argument that the appellant, harboured a bonafide view. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 45,37,892/- 2.1 Learned Counsel pointed out that they are not contesting the demand of Service Tax on Serial No. 3 4 on merits, however, they are contesting the said demands on the issue of limitation. As far as Serial No. 1 of the above table is concerned the contract dated 19.09.2003, required the appellant to do the following activity:- 2.3 Learned Counsel pointed out that the demand has been made under the head of Cleaning Services are defined under Section 65 (24b) of the Finance Act, 1994 which reads as under: 25.1-1 S ection 65(24b) of the Act defines 'cleaning activity as follows: (246) cleaning activity means cleaning, including specialised cleaning services such as disinfecting, exterminating or sterilising of objects or premises, of- (i) Commercial or industrial buildings and premises thereof; or (ii) Factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and premises thereof, but does not include such services in relation to agriculture, horticulture, animal husbandry or dairyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able in para 2 above is concerned the contract dated 15.06.05 described the service as follows:- 2.6 Learned Counsel pointed out that the activities relate to cutting of grass, trees and bushes and does not amount cleaning service and thus, the activity should be called horticulture and does not amount to cleaning service. He, however admitted that the premises in which the activity was being undertaken are commercial and industrial premises where natural Gas is collected by ONGC. 2.7 Learned Counsel further pointed out that though the appellant had not taken Service Tax registration and had not filed any returns but as soon as the issues was raised the appellant voluntarily admitted their liability in respect of item 3 4 of the above table in para 2 and paid duty. He further pointed out that in their response to summons they had clarified that the appellant had bonafide belief that no Service Tax is leviable on Serial No. 1 2 of the above table as these services do not amount to cleaning services as defined in Section 65 (24b) of the Finance Act, 1994. 2.8 He further pointed out that the penalty under Section 78 has been imposed at double rate of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustrial buildings and premises thereof; or (ii) Factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and premises thereof, but does not include such services in relation to agriculture, horticulture, animal husbandry or dairying. 5.1 It is seen that the terms premises in the definition of cleaning activity does not cover the premises of service recipients but it covers only the premises of commercial or industrial building or factory, plant or machinery, tank or reservoir of such commercial or industrial building only. It is not as if all the premises on the service recipient would be covered in the definition. All the three decisions relied upon by Revenue relate to eligibility of Cenvat Credit. This definition of input services in the Cenvat Credit Rules is significantly differently worded and the decisions applicable to eligibility of input services as Cenvat Credit cannot be applied to levy of Service Tax on cleaning activity. The definition of input services is very vast and uses words like in or in relation to and also has inclusive parts which covers services received at places other than the main office. Moreover the CBE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scription given in above para. It is apparent that the activity undertaken by the appellant is in the nature of cleaning activity and therefore covered under the definition of this service as defined in Section 65 (24b) of the Finance Act, 1994, the demand of this ground is therefore upheld. 7.1 It is seen that the appellants were not registered with the Service Tax department at the time when the case was booked against him. The appellant had immediately paid Service Tax on 2 of the 4 issues raised by authorities. Learned Counsel tried to argue that the appellant had bonafide belief that the services were not taxable. We find that as far as the activity at Serial No. 2 of the table in para 2 above is concern there is absolutely no doubt that the said activity amounted to provision of the cleaning services as defined in Section 65 (24b) of Finance Act, 1994 and there could not have been any bonafide doubt to in that regard. In view of above, we do not find any merit in the argument that the appellant, harboured a bonafide view. 8. In view of above the demand on Serial No. 2, 3 4 of the table in para 2 is upheld. The demand in Serial No. 1 of the above table is set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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