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TMI Blog2020 (3) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... ond from contamination. Fly ash is being excavated and transported to the specified areas as per the contract. Works Contract service - sub-contract - work done as a sub contractor for McNally Bharat Engineering Co. Ltd., Purba Medinipur Zilla Parishad and Rites Ltd. - HELD THAT:- The contracts of railway in respect of Rites Ltd. under section 65(25b) of the Finance Act 1994. In the case of Purba Medinipur Zilla Parishad which relates evacuation of ash pond and it s transportation, this bench has already decided the issue in the case of the same assessee vide PURBA MEDINIPUR ZILLA PARISHAD VERSUS COMMISSIONER OF C. EX., HALDIA [ 2010 (5) TMI 369 - CESTAT, KOLKATA] . Also, It cannot be urged that there was any wilful suppression of facts with an intention to evade payment of duty as is the requirement of Section 73(1) of the Act. The Learned Commissioner has erred in confirming the demand and invoking the provision of 73(1) of the Finance Act 1994 as well as in imposing the penalty u/s. 78 and u/s. 76 of the Finance Act 1994 - the impugned order cannot be sustained and the same is set aside - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.297 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax amounting to ₹ 1,11,86,688/- (One Crore Elevan Lakhs Eighty Six Thousand Six hundred Eighty Eight) and imposed penalty under section 78 and 76 of the Finance Act 1994. The Commissioner also confirmed the provision of section 73(1) of chapter (v) of the Finance Act 1994. 3. The appellant assessee preferred an appeal before the Tribunal with the following grounds of appeal: 3.1 That the assessee took up the matter contract wise as the activities under taken were different in different contracts. 3.2 That the learned Counsel appearing on behalf of the Appellant, filed written submissions and a compilation of statutory provisions, Board s Circular, and relied upon decisions and contended that as per the definition of Cleaning Activity under Section 65 (24b) of the Finance Act, cleaning would include Specialized cleaning such as disinfecting, exterminating or sterilizing of objects or premise or tanks or reservoirs of such Commercial or industrial building. He further submited that the term Cleaning has not been defined anywhere in the Finance Act, and therefore, in order to define the term, he referred to Concise Oxford Dictionary which defines it a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 07/10/2010. 4.2 In response to the above contention of the appellant assessee, the Commissioner in the Order in Original no. 30/Commr./CE/Hal/2012 dated 30/03/2012 observed the following in para 4.22 In regard to the work claimed to be started prior to the period involved in the instant demand, I find that the work pertains to the contract in agreement of which either it has been continued extending to the material period or it has been completed during the impugned periods. Moreover, none of the services was exempted either during the material period or immediately prior to the material period. However, in all cases, the service value has been received by the assessee during the period 2007-08 to 2009-10. 4.3 That in respect of the three contracts as referred above, the department has referred to Circular no. 96/7/2007 dated 23/08/2007 wherein the sub contractor was liable to pay tax. The Appellant all along was under the bonafide belief that no Service Tax is payable by the sub contractor in view of various conflicting decisions by different Benches of the Tribunal. On this account the matter had to be referred to a larger bench. Hence, it was mentioned by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing excavated and transported to the specified areas as per the contract. 9. 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. 10. 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. 11. That we are in agreement with the contention of the Learned Consultant in respect of the letter dated 20/06/2008 by the audit department that a sum of ₹ 6,30,92,249/- pertains to Financial Year 2005-2006 to 31/03/2008 which is self admission and which cannot be ignored. It is also not permisible in law to bring the value of earlier years forward to bring it within the period of Show Cause Notice. The Learned Commissioner has not justified this aspect in his Order in Original no. 29/Commr./CE/Hal/2012 dated 30/03/2012. 12. As far as the contention of the appellant assessee regarding the work done as a sub contractor is concerned, the contracts of railway in respect of Rites ..... X X X X Extracts X X X X X X X X Extracts X X X X
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