2023 (1) TMI 1104 - AT - Service Tax

Classification of Services - Site Formation and Clearance, Excavation and Earthmoving and Demolition Service - activity Dismantle is different from the activity demolition or not - HELD THAT - The appellant had merely carried out dismantling activity. This activity, in no way, can be considered as a taxable service under the category of site formation and clearance, excavation and earthmoving and demolition service inasmuch as the work assigned under the work order for do not attract any of the clauses itemized in the definition provided under Section 65(97a) ibid. Thus, the activities undertaken by the appellant will not fall under the taxing net for levy of service tax under the disputed taxable service. There is merit in the finding of the Ld. Commissioner. Therefore, the work undertaken by the respondent cannot be termed as an activity of Site formation and clearance, excavation earthmoving demolition . Appeal dismissed - decided against Revenue.

Summary

Issues:
Classification of service tax demand under the category of "Site Formation and Clearance, Excavation and Earthmoving and Demolition Service."

Detailed Analysis:

1. Facts of the Case:
During an audit, it was found that the assessee had undertaken dismantling activities in a contract with another company. The revenue issued a show cause notice for service tax under the category of "Site Formation and Clearance, Excavation and Earthmoving and Demolition Service." The Commissioner dropped the demand, leading to the appeal by the Revenue.

2. Revenue's Argument:
The Revenue contended that dismantling falls under the taxable services mentioned in the definition, as the word 'includes' indicates an illustrative rather than exhaustive list. The Revenue highlighted clauses in the work order supporting their claim that the activity was indeed within the scope of taxable services.

3. Respondent's Argument:
The Respondent argued that the dismantling activity was distinct from demolition, as specified in the work order. They emphasized that the on-site cleanup mentioned in the work order did not align with the taxable service category.

4. Judgment and Analysis:
The Tribunal examined the definitions provided under Section 65(97a) and the scope of work outlined in the work order. It was concluded that the appellant had solely engaged in dismantling activities, which did not fit within the taxable service category. The Tribunal found no alignment between the dismantling work and the services listed under the definition. Consequently, the Commissioner's decision to drop the service tax demand was upheld, dismissing the Revenue's appeal.

5. Conclusion:
The Tribunal's decision, based on a thorough analysis of the definitions and the actual work undertaken by the assessee, supported the dismissal of the Revenue's appeal. The judgment emphasized the importance of aligning the nature of work with the specific taxable service category to determine the applicability of service tax demands accurately.