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TMI Blog2016 (11) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 65 (105) (zzzd) of Finance Act, 1994, 'transportation of goods by road service' for 2004-05 to 2008-09 taxable under section 65 (105) (zzp) of Finance Act, 1994, 'site formation and clearance, excavation and earthmoving and demolition service' from 2007 onwards taxable under section 65 (105) (zzza) of Finance Act, 1994. It is alleged that even after it was pointed out by the tax authorities, registration was taken only for the 'goods transport agency service' and 'clearing agency service' on 16th September 2008 and 13th September 2009 respectively. Allegedly, Rs. 39,63,718/- comprising Rs. 2,58,633/-, Rs. 3,43,483/- and Rs. 33,40,764/- respectively was liable to be recovered as tax on all three services. 2. In order no. 55/Add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te formation and clearance, excavation and earthmoving and demolition service.' 4. Appellant-assessee claims that the impugned order, by failure to articulate the option of paying penalty at 25% of the amount imposed, had denied them the privilege and prays for an unequivocal direction to that effect. On a perusal of the second proviso to section 78 of Finance Act, 1994 which reads thus: 'Provided further that where such service tax and the interest payable thereon is paid within thirty days from the date of communication of order of the Central Excise Officer determining such service tax, the amount of penalty liable to be paid by such person under the first proviso shall be twenty-five per cent of such service tax: Provided also that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on work; or (iv) Contaminated top soil stripping work; or (v) Demolition and wrecking of building, structure or road, but does not include such services provided in relation to agriculture, irrigation, watershed development and drilling, digging, repairing, renovating or restoring of water sources or water bodies.' 6. The ground on which Revenue seeks confirmation of the tax is that the definition is an inclusive one in which the composition of the description is the primary activity to be taxed with the inclusive elements not to be excluded from its ambit under any circumstances. Pointing out that the original authority has isolated the excavation activity in the work order, and which the first appellate authority had incorrectly cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... axable but, here, we are concerned with the enhancement of height of that storage facility. This is construction which, even if not conforming to the description of that taxable service is, nevertheless, a civil work. The addition to the retaining embankment involves, according to the work order, cleaning of the base and excavation which are elements in the description of the taxable service in section 65 (105)(zzza) of Finance Act, 1994, viz., "taxable service" means any service provided or to be provided to any person, by any other person, in relation to site formation and clearance, excavation and earthmoving and demolition and such other similar activities and the term "service provider" shall be construed accordingly.' 10. The aim an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority that laying of embankment and related construction do not conform to the definition of the service. The next issue for determination is whether these services have been rendered to the project proprietor by the assessee. We are unable to fault the finding of the first appellate authority that the site being handed over to the assessee for raising of the height of the 'ash bund' which is the subject matter of the contract, the clearance and excavation work is in relation to that activity and hence rendered to themselves. Had that portion of the work been executed by another person, the tax liability would devolve on that person for having rendered service to the assessee and not upon the assessee. Revenue, in its appeal, appears to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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