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TMI Blog2018 (11) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... the fly ash with the objective of cleaning the pond or free the pond from contamination. Fly ash is being excavated and transported to the specified areas as per the contract. The issue in the present case is covered by the decision of this Bench in the case of M/s. Calcutta Industrial Supply Corporation Vs. Commissioner of Service Tax, Kolkata [2017 (11) TMI 158 - CESTAT KOLKATA], where it was held that 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 ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 1/03/2007 to 31/03/2007. The Adjudicating Authority vide OIO dated 13/04/2009 confirmed the demand of Service tax under the category of cleaning service amounting to ₹ 47,66,086/- along with interest and also imposed penalty under Section 76, 77 & 78 of the Finance Act, 1994. For the subsequent Show Cause Notice, the Adjudicating Authority vide OIO dated 23/06/2009, confirmed the demand of Service tax amounting to ₹ 11,98,965/- along with interest and also imposed penalty under Section 76, 77 & 78 of the Finance Act, 1994. 3. The assessee preferred Appeals before the Ld. Commissioner (Appeals). 4. The Ld. Commissioner (Appeals) vide common Order-in-Appeal i.e the impugned order allowed the appeals both on merit and limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s only to three activities i.e. disinfecting, exterminating or sterilizing of object or premise. The Ld. Advocate argued that in the present case, the activity of excavation and transportation of fly ash from the pond, for channeling the slurry water-flow cannot be termed as a cleaning activity in terms of 65 (24b) of the Finance Act. The Respondent-Assessee is not removing the fly ash with the objective of cleaning the pond or free the pond from contamination. Fly ash is being excavated and transported to the specified areas as per the contract and the same cannot be termed as a cleaning activity. 8. The Ld. Advocate, also contended that the fly ash is a saleable good, which is used in the manufacture of ceramic tiles, mineral wool, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot clearing the fly ash with the objective of cleaning the pond or free the pond from contamination. Fly ash is being excavated and transported to the specified areas as per the contract. 12. We observe that fly ash is a saleable good, which is further used in manufacture of bricks etc. and hence it is not waste, which is being removed from the pond. It has specific utility and capable of being sold in the market. 13. We find that the issue in the present case is covered by the decision of this Bench in the case of M/s. Calcutta Industrial Supply Corporation Vs. Commissioner of Service Tax, Kolkata. The relevant para is reproduced below:- 8. Cleaning Service: 8.1 The Ld. Counsel submitted that the appellant is merely loading/lifting Ash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses thereof or factory, plant or machinery, tank or Reservoir of such commercial or industrial buildings or premises. 8.4. It is seen from the letter dated 03.02.2004 of DVC that the appellant was awarded tender for excavation of Ash from different field 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. 14. In view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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