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TMI Blog2009 (7) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to reexamined – remanded back - ST/547 OF 2007 CUST.BR - ST/222 OF 2009 - Dated:- 13-7-2009 - DR. C. SATAPATHY, TECHNICAL MEMBER and D.N. PANDA, JUDICIAL MEMBER A.K. Batra for the Appellant. S.K. Panda for the Respondent. ORDER D.N. Panda, Judicial Member. - The appellant being aggrieved by the impugned order dated 22-6-2007 giving rise to following consequences has preferred appeal before the Tribunal and such appeal was registered by Tribunal as Appeal Case No. ST/547/2007/Cust. Br.: (1) Service tax demand amounting to Rs. 1,59,68,674 (Rs. One Crore Fifty Nine Lakhs Sixty Eight Thousand Six Hundred and Seventy Four Only) was confirmed to be leviable on the taxable value of Site Formation and recovery thereof was ordered under the proviso to sub-section (1) of section 73 read with sections 66 and 68 of the Finance Act, 1994. (2) Service tax demand amounting to Rs. 6,72,143 (Rs. Six Lakhs Seventy Two Thousand One Hundred and Forty Three only) was confirmed on the value of Cargo Handling Service under the proviso to sub-section (1) of section 73 read with sections 66 and 68 of the Finance Act, 1994. An amount of Rs. 2,94,063 already paid by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity, examining reply to show-cause notice statements recorded from different persons, evidence on record and various pleading raised before it in the course of adjudication, decided the matter against the appellant for realising the demand aforesaid on following grounds:- (1) Agreement entered into by the party with M/s. SECL revealed that the agreement was for hiring of HEMM for excavating (including drilling in all kinds of strata/overburden), loading into tippers, transportation and unloading the excavated materials and silt, dumping, dozing, scrapping/removal of bands, preparation/maintenance of haul road, water sprinkling and spreading of material at the site of SECL. (2) The work involved 'Making blast holes by drilling earth, preparation of faces and excavation of various rocks/earth cutting (consisting of top soils, alluvium soils, blasted rocks etc.), loading and transportation of excavated earth, dumping, dozing and levelling at dump site using suitable machines. Accordingly, the appellant was engaged in preparation of the site for the upcoming open cast coal mine of M/s. SECL by undertaking excavation of overburden, earthwork etc., as it was the responsibility ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Turfing - Protecting the outer slope of earth's surface of dyke and providing turfing on the slopes of embankment. (Amount: Rs. 8,46,000). (viii) Plain cement concrete - Supplying and laying in position plain cement concrete including mixing, conveying, laying, compacting and curing etc., as per drawings. (Amount: Rs. 1,50,100) (ix) Reinforced cement concrete - Supplying and laying in position design mix cement concrete for reinforced concrete work in foundation and sub-structure including mixing, conveying, laying compacting etc. (Amount: Rs. 18,20,000). (x) Reinforcement steel - Supplying, cutting, bending, putting in position and binding as per drawing. (Amount: Rs. 20,40,000). (xi) RC Pipes with bedding - Supplying and laying of RC Pipes of given specification. (Amount: Rs. 22,20,000). (xii) Gates- Supplying and fixing position of gates. (Amount: Rs. 1,50,000). (xiii) Drain work - This includes supplying and laying in position of pipes and bricks for drain wall. (Amount: Rs. 85,70,000). (xiv) Bitumen painting on inside and outside surfaces of the decantation wells. (Amount: Rs. 19,200). (xv) Road work. (Amount: Rs. 80,99,000) (xvi) S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant Shri A.K. Batra, CA submitted that following are principal grievances of the appellant :- (1) Order passed by the Ld. Commissioner is against the legal proposition. (2) Services provided by the appellant are not taxable. (3) Site formation, clearance excavation, earthmoving and demolition services related to construction of ash dyke which is a dam . (4) There was no cargo handling service provided. 6. Ld. Authorised Representative submitted a paper-book showing the agreement between the parties in respect of both the impugned categories of services aforesaid and tried to convince that the case of the appellant is construction of a Dam and that is beyond the purview of levy of service tax in terms of the law as well as Notification No. 17/05-ST, dated 7-6-2005. He submitted that dams are excluded from the purview of taxation, In support of his contentions, Ld. Counsel relied on following decisions:- (1) Larsen Tubro Ltd. v. CCE 2004 (174) ELT 322/[2007] 7 STT 91 (New Delhi-CESTAT) (2) Daelim Industrial Co. Ltd. v. CCE 2003 (15) ELT 457/[2007] 7 STT 184 (New Delhi-CESTAT) (3) Contemporary Packaging Technologies (P.) Ltd. v. CCE 2003 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned, both parties are in dispute as to various activities involved in construction of ash dyke whether have resulted with a structure called dam . Site Formation for constructing a dam is exempted from service tax under the law. The circular and notification relied upon by both the sides need to be examined thread bare to test whether the various activities of site formation have given rise to a dam or an Ash Dyke . In view of the nature, purpose and characteristics of dam need to be brought to record, it is necessary to send the matter back for re-examination of stand of each other on the light of the circulars, notifications and citations relied upon by both. This we say for the reason that the ld. Commissioner while passing the order has not examined the circular and notifications aforesaid to redress grievance of the appellant. 12. We may state that exemption granted to an assessee is in the nature of expression to be construed strictly at the stage of determination whether the assessee shall fall with its terms or not and in case of doubt or ambiguity the benefit must go to the State. But once the provision is found applicable to him, full effect must be given ..... X X X X Extracts X X X X X X X X Extracts X X X X
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