2019 (5) TMI 1622 - AT - Service Tax

Classification of services - Site Formation and Clearance, Excavation Earth Moving and Demolition or not? - agreement for providing work of de-silting of iron ore slimes including loading and transportation of the same at Kadampal Tailing Dam to the fine ore dump at M.V. Siding, Kirandul of Bailadila Iron Ore Project - HELD THAT - A perusal of the agreement indicates that the work that has to be performed by the appellant is de-silting of slimes at Kadampal Tailing Dam and transportation of the slimes to fine ore dump at M.V. Siding, Kirandul . It is, therefore, apparent that the Dam is in existence and only the work of de-silting of slimes has to be carried out by the appellant. Thus, any activity prior to the construction of Dam, would fall under the category of Site Formation , as has been clarified in the Budget Letter dated 27 July, 2005. Any activity of de-silting of slimes after the construction of the Dam would, therefore, not fall in the category of Site Formation . The Commissioner (Appeals) failed to appreciate this aspect of the matter and committed an error in holding that the activity carried out by the appellant would fall under the category of Site Formation . Appeal allowed - decided in favor of appellant.

Summary

Issues:
Challenge to order confirming demand of service tax, interpretation of 'Site Formation' activity, applicability of service tax.

Analysis:
The appeal challenged an order confirming the demand of service tax, interest, and penalty by the Assistant Commissioner, which was upheld by the Commissioner (Appeals). The dispute arose from an agreement where the appellant was tasked with de-silting slimes at a dam and transporting them to another location. The appellant contended that this activity did not fall under the category of 'Site Formation' as defined in the Finance Act, 1994. The Commissioner (Appeals) concluded that the activities indeed constituted 'Site Formation' and were taxable from a certain date.

The appellant argued that the Commissioner (Appeals) erred in categorizing the activity as 'Site Formation'. They referenced the definition of 'Site Formation' in the Finance Act, 1994, and a Budget Letter from the Government of India, Ministry of Finance, to support their position. The definition of 'Site Formation' included activities like drilling, boring, soil stabilization, and demolition, but excluded services related to agriculture or irrigation. The Budget Letter further elaborated on the scope of 'Site Formation' activities, emphasizing preparatory services before construction.

The agreement between the parties revealed that the appellant's work involved de-silting slimes at an existing dam and transporting them. The Tribunal noted that activities preceding dam construction could be considered 'Site Formation', as clarified in the Budget Letter. However, post-construction activities like de-silting would not qualify as 'Site Formation'. The Tribunal found that the Commissioner (Appeals) failed to recognize this distinction, leading to an erroneous decision. Consequently, the Tribunal set aside the Commissioner's order, allowing the appeal.

In conclusion, the Tribunal's analysis focused on the interpretation of 'Site Formation' activities in the context of the appellant's work, emphasizing the distinction between pre and post-construction tasks. The judgment highlighted the importance of aligning activities with the legal definitions to determine the applicability of service tax accurately.