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2023 (8) TMI 57 - AT - Service TaxDemand of Service tax - Cleaning Service - Management, Maintenance or Repair Service - Construction of Complex Service - claim of construction of the households for personal use, exemption applicable or not - C onstruction of Fire Hydrant System at the Bathinda unit of M/s Ambuja Cements - Extended period of limitation. Cleaning Service - HELD THAT - The appellants have simply transported the ash from one premises of the factory and dumped the same in other premises designated for the same - A plain reading of the definition of Cleaning services gives to understand that the activity covered by the above definition is not transportation as is done by the appellant; understandably, all types of cleaning are not covered by this definition. Kolkata Bench of Tribunal in the case of Calcutta Industrial Supply Corporation 2017 (11) TMI 158 - CESTAT KOLKATA held that it is seen from the letter dated 03.02.2004 of DVC that the appellant was awarded tender for excavation of ash from different fields of ash ponds of DTPS, DVC, Waria. Nuisance free transportation and disposal of ash in abandoned mines of ECL. It appears that the purpose of the tender is for disposal of ash in the abandoned mines of ECL. The appellant is engaged for transportation and disposal of ash, in the abandoned mines. The letter does not show that the appellant was engaged for cleaning of the premises. Therefore, the demand of service tax under the category of Cleaning Service is not justified - In the instant case too, the activity undertaken by the appellants is of transportation and disposal of ash rather than cleaning of the premises as envisaged under the definition cited above. Therefore, the contentions of the appellant are acceptable and therefore, the demand of service tax on this count is liable to be set aside. Management, Maintenance or Repair Service - HELD THAT - As per provision of Section 65A, specific description is to be preferred to a generic description. Moreover, the appellants have undertaken mostly the repair of roads which is exempted by Section 97 as well as by Notification No.24/2009. If the activity of the appellant is considered as repair of roads and buildings, it gets categorized under Commercial or Industrial Construction and therefore, a show-cause notice issued under the Management, Maintenance or Repair Service cannot be sustained. On the other hand, if the activity is considered as repair of road, the same stands exempted. Either way the demand under this Head is liable to be set aside. Construction of Complex Service - HELD THAT - The Department had made no efforts whatsoever to find out whether the said complexes constructed by the appellants fulfilled the criteria of Residential Complex by having 12 or more units, a common area and anyone or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system - allegation of construction of residential complex by the appellant has no force of law or facts thereof. For this purpose alone, the show-cause notice and the impugned order are not sustainable as far as the demand on Construction of Complex Service is concerned. Claim of construction of the households for personal use - Exempt or not - HELD THAT - Hon ble High Court of Karnataka in the case of COMMISSIONER OF CENTRAL EXCISE SERVICE TAX CUSTOMS, BANGALORE-II VERSUS NITHESH ESTATES LTD. 2018 (7) TMI 1135 - KARNATAKA HIGH COURT held that The Residential Complex in question was undertaken to be constructed by the Respondent Assessee M/s. Nithesh Estates Limited for ITC Limited under the Contract dated 01/04/2006. It is equally undisputed before us that the construction activity in question was in its entirety sub-contracted by M/s. Nithesh Estates Limited to M/s.Larsen and Toubro Limited. There is no material on record or evidence to indicate that any part of construction activity in question was undertaken by the Respondent Assessee M/s. Nithesh Estates Limited itself - Exemption allowed. Industrial or Commercial Construction - Construction of Fire Hydrant System at the Bathinda unit of M/s Ambuja Cements - HELD THAT - The appellant s claim that it is the requirement of the Factories Act, it is found that the appellants have not shown any provision in the law to the extent that the activity undertaken by them is for performance of a statutory duty and to the effect that the same is exempted. Therefore, the appellant s claim is not acceptable on this count. However, their claim on small-scale exemption is acceptable as, in view of the above, the demands under other Heads have been held not maintainable. Extended period of limitation - HELD THAT - As no part of the demand is sustainable. The issue of limitation is inconsequential. Appeal allowed.
Issues Involved:
1. Cleaning Service 2. Management, Maintenance or Repair Service 3. Construction of Complex Service 4. Industrial or Commercial Construction Service 5. Extended Period of Limitation Summary: 1. Cleaning Service: The appellants were accused of providing "Cleaning Services" by transporting ash from one part of a factory to another. The tribunal found that this activity did not fall under the definition of "Cleaning Services" as per Section 65(105)(zzzd). The tribunal referenced the case of Calcutta Industrial Supply Corporation, where similar activities were not considered "Cleaning Services." Consequently, the demand for service tax under this category was set aside. 2. Management, Maintenance or Repair Service: The appellants argued that their activities, primarily involving road repairs and petty civil works, should be classified under "Commercial or Industrial Construction" or "Construction of Complex" rather than "Management, Maintenance or Repair Service." The tribunal agreed, noting that specific descriptions should be preferred over generic ones as per Section 65A. Additionally, road repairs were exempted under Section 97 and Notification No.24/2009. Thus, the demand under this head was also set aside. 3. Construction of Complex Service: The tribunal examined whether the construction activities undertaken by the appellants met the definition of "Residential Complex" under Section 65(91a). The tribunal found that the Department failed to provide sufficient proof that the constructed units met the criteria for a "Residential Complex." Moreover, it was noted that the construction was for personal use by Northern Railway and M/s Ambuja Cements, which should be exempt from service tax as per the Karnataka High Court's ruling in Commissioner C.E.& S.T, Bangalore-II Vs Nithesh Estates Limited. Therefore, the demand under this category was not sustainable. 4. Industrial or Commercial Construction Service: Regarding the construction of a Fire Hydrant System at M/s Ambuja Cements, the tribunal found no statutory provision exempting this activity from service tax. However, the tribunal accepted the appellants' claim for small-scale exemption, as other demands were not maintainable. 5. Extended Period of Limitation: The appellants contended that they did not suppress any material facts and had a bona fide belief that their activities were not taxable. The tribunal found that since no part of the demand was sustainable, the issue of limitation was inconsequential and did not require further findings. Conclusion: The appeal was allowed with consequential relief as per law, and the tribunal set aside the demands under all categories.
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