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TMI Blog2023 (8) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... ree 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 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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. - Service Tax Appeal No.2638 Of 2012 - FINAL ORDER No.60226/2023 - Dated:- 31-7-2023 - MR. S. S. GARG, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri G.S. Sandhe, Advocate for the Appellant Shri Aneesh Dewan and Shri Shivam Syal, Authorised Representative for the Respondent ORDER M/s Kumar Builders, the appellants, having got registered, provided certain services to M/s National Fertilizers Limited, Northern Railways and M/s Ambuja Cement Limited; investigation by the Preventive Branch of Central Excise revealed that the appellants have provided services under the category of Cleaning Activity , Maintenance or Repair , Management, Maintenance or Repair , Construction of Complex and Commercial or Industrial Construction etc. and have not paid applicable service tax. A show-cause notice dated 24.01.2011 was issued to the appellants and was confirmed by the Adjudicating Authority vide impugned order dated 16.01.2012. CESTAT vide Final Order N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating Authority erred in holding that tax liability has to be examined in the light of definitions under the Act and not as per the contract; the nature of the service can only be ascertained from the terms of the contract and the actual work undertaken; the work they have undertaken was repair by way of petty civil works, like construction of wall, parking sheds etc., in the plant and township of M/s NFL; the job involved use of material also; cement was provided by M/s NFL and Sales Tax was paid on the same; the activity cannot be covered under Maintenance or Repair but can be covered under Construction Of Complex in the township and under Commercial or Industrial Construction in the Plant area; it can be seen from the definitions of Commercial or Industrial Construction [Section 65 (25b)] and Construction of Complex [Section 65 (30a)] which include repair, alteration, renovation or restoration; learned Counsel submits that the construction being for self-use by M/s NFL does not attract service tax. He submits that since the Department has raised the demand on Management-Maintenance or Repair , the same cannot be sustained. 5. On the issue of Construction of Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. Venture- 2007 (216) ELT 177 (SC). Padmini Products- 1989 (43) ELT 195 (SC). 8. Shri Aneesh Dewan assisted by Shri Shivam Syal, learned Authorized Representative for the Department reiterates the findings of the OIO and submits that regarding the Cleaning Service , the appellant s reliance on Calcutta Industrial Supply Corporation is not correct as the case has been appealed before the Hon ble Apex Court but was withdrawn on monetary grounds; the Hon ble Apex Court, while granting permission to withdraw, kept the question of law open. 8.1. Coming to the demand on Management, Maintenance or Repair Services , learned AR submits that Shri Makhan Lal, Proprietor of the appellant in his statement dated 01.10.2010 stated that they have been allotted these work orders for maintenance and repair work of civil jobs like those of civil buildings, roads in the factory and colony and therefore, they are correctly classified under Management, Maintenance or Repair Service and the service tax has been correctly confirmed. 8.2. Coming to the demand on Construction of Complex Service , learned AR submits that the Adjudicating Authority has rightly held that the legal provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s showing the correct particulars was required under the law; in case the appellant was under any doubt, he could have obtained legal opinion for clarification; thus there can be no excuse of ignorance even though the ignorance of law is no excuse; the Adjudicating Authority therefore held that since there is a clear violation of the statutory provisions with an intention to evade the payment of appropriate service tax, extended time limit of five years is invokable. 10. Heard both sides and perused the records of the case. Having gone through the rival submissions, we would like to address the issues as raised by the learned Counsel for the appellant and the learned Authorized Representative, demand wise. 11. Coming to the demand of Cleaning Service , we find 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. The definition of Cleaning Services under Section 65(105)(zzzd) is as follows: [(24b)] cleaning activity means cleaning, including specialized cleaning services such as disinfecting, extermination or sterilizing of objects or premises, of (i) commercial or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipeline or conduit; or (c) completion and finishing services such as glazing, plastering, painting. floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services, in relation to building or civil structure; or (d) repair, alteration, renovation or restoration of, or similar services in relation to, building or civil structure, pipeline or conduit, which is- (i) used, or to be used, primarily for; or (ii) occupied, or to be occupied, primarily with; or (iii) engaged, or to be engaged, primarily in, commerce or industry, or work intended for commerce or industry, but does not include such services provided in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams;] Section 65 (30a) construction of complex means- (a) construction of a new residential complex or a part thereof; or (b) completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common area; and (iii) any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system, located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person. Explanation. For the removal of doubts, it is hereby declared that for the purposes of this clause, (a) personal use includes permitting the complex for use as residence by another person on rent or without consideration; (b) residential unit means a single house or a single apartment intended for use as a place of residence;] 17. We find that learned Commissioner finds that no documentary evidence like layout plan or some other document to show the complex-wise number of units constructed has been produced by the noticee; the contracts available with the Department are for more than 12 units each; though the noticee cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent assessee M/s. Nithesh Estates Limited itself. The fact of sub-contract of the entire Residential Complex in question by the respondent assessee M/s. Nithesh Estates Limited to M/s. Larsen and Toubro Limited is not disputed by the Revenue. It is also not disputed that due Service Tax on the payments made to the sub-contractor M/s. L T Limited stood paid to the Government. 19. The Central Board of Excise and Customs (C.B.E. C.) for the pre-amendment period prior to 1-7-2010 has issued the aforesaid Circular No. 108/2/2009-S.T., dated 29-1-2009 clarifying this position, that in such cases, where the ultimate owner (M/s. ITC Limited in the present case) enters into a Contract for construction of a Residential Complex with the Promoter/Builder/Developer (M/s. Nithesh Estates Limited in the present case) which itself provides service of Design, Planning and Construction and after such construction, the ultimate owner receives such property for Personal use , then such activity would not be subjected to Service Tax, because this case would fall under the Exclusion Clause provided in the definition of Residential Complex . 20. However, in such a situation, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of relevant facts and evidence available before it, in our opinion, therefore, has rightly concluded that the respondent assessee was not liable to pay any Service Tax on the Residential Complex constructed through the sub-contractor, M/s. L and T Limited in the present case and such finding of facts recorded by the Learned Tribunal based on relevant material and evidence, in our opinion, does not give rise to any substantial question of law in the present case. 26. In view of the aforesaid, all the three proposed substantial questions of law suggested by the Revenue need not be separately answered, as we have come to the conclusion that no substantial question of law would really arise in the present case including the question of extended period of limitation under Section 73(1) of the Finance Act, 1994. When the levy of Service Tax on the respondent Assessee itself is held to be illegal, the question of availability of extended period of limitation for levying such Service Tax does not arise. 19. Regarding the demand of service tax on the construction of Fire Hydrant System at the Bathinda unit of M/s Ambuja Cements, we find that demand has been raised under Indus ..... 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