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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 ..... elaborate description of the structure in the impugned order for a clearer insight into the issue is gratefully acknowledged. The aim and purpose of the taxable entry, evident from the circular supra, was to tax the activity rendered by providers ahead of another activity on the said land. Land is used for construction of buildings or facilities or is exploited for agriculture and mining. To the extent that some of these uses are to be encouraged, even at the cost of foregoing tax, in the larger interests of societal needs, the statute itself provides exclusion. The claim of the assessee that the circular supra suffices to limit the scope of tax does not stand the test of the statutory intent. The circular merely exemplifies the scheme o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant, in relation to cleaning activity service for 2005-06 to 2008-09 taxable under 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 16 th September 2008 and 13 th September 2009 respectively. Allegedly, ₹ 39,63,718/- comprising ₹ 2,58,633/-, ₹ 3,43,483/- and &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 78 of Finance Act, 1994. Revenue is in appeal against the quashing of demand, interest and penalty relating to rendering of site 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... geological or similar purposes; or (ii) Soil stabilization; or (iii) Horizontal drilling for the passage of cables or drain pipes; or (iv) Land reclamation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order for a clearer insight into the issue is gratefully acknowledged. 9. Undoubtedly, the existing ash bund was set up on site that must have been subject to activity that is taxable 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these aspects of the contract is ₹ 16,34,743.80. The first appellate authority has not included the preparation of trench which we feel should have been. For the rest, we concur with the first appellate authority 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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