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TMI Blog2023 (12) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... clude such services in relation to agriculture, horticulture, animal husbandry or dairying - In the instant case, the activity of fumigation of containers was not of commercial or industrial building or premises thereof. It would, therefore, not be covered by the definition of cleaning activity under section 65(24b) of the Finance Act. Circular dated 12.01.2011 was amended by Circular dated 20.01.2011 by deleting the word Circular at paragraph 2(b) and replacing it by Notification - A perusal of the aforesaid Circular shows that fumigation of export cargo would not satisfy the statutory definition of cleaning activity under section 65(24b) of the Finance Act and it is only as a matter of abundant caution that the government had issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service is a taxable service under the category of cleaning activity defined under section 65 (25a) of the Finance Act, 1994 [the Finance Act] and made taxable under section (65) (105) (zzzd) of the Finance Act. 3. As the appellant had not deposited any service tax against this activity, a show cause notice dated 05.01.2016 was issued to the appellant proposing a demand of service tax with interest and penalty for the period from 01.01.2011 to 30.06.2012 by invoking the extended period of limitation contemplated under the proviso to section 73(1) of the Finance Act. 4. The appellant filed a reply denying the allegations made in the show cause notice and contended that the activity of fumigation of export containers would not fall w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner recorded the following findings: A bare perusal of the wordings under the said notification stipulates that fumigation of containers used for export of goods is a taxable service under section 65(105)(zzzd) of the Finance Act, 1994. Thus, the said service is chargeable to service tax under section 66 of the Act ibid and the consideration received against such service forms the value of taxable service. However, exemption from service tax has been given to such service under certain conditions and the exemption is available only by way of refund of service tax paid on services utilized for export of goods. This clearly presents the picture that the service tax is to be paid first and in order to avail exemption from service tax, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the category of 'Clearing Service'. They have further contended that the definition of 'Cleaning Services' under section 65 (24b) of the Finance Act, 1994 does not cover fumigation of containers. They have also contended that CBEC, Board vide their Circular No. 132/1/2011- ST dated 12-01-2011 has clarified that fumigation of export cargo whether loaded into containers or otherwise, does not satisfy the statutory definition of 'Cleaning activity' under Section 65(24b) of the Finance Act, 1994. I find that the Notification no. 41/2007- ST dated 06-10-2007 as amended, grants exemption to the specified service of the description of 'Cleaning Services' namely fumigation of containers' as classified under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that both the Assistant Commissioner and the Commissioner (Appeals) committed an error in relying upon the exemption notification when the activity of fumigation of export containers was not taxable at all. Learned consultant also submitted that in any view of the matter, the Circular dated 12.01.2011 makes it absolutely clear that the activity of fumigation of export containers will not fall under the taxable category of cleaning activity defined under section 65 (24b) of the Finance Act. 10. Shri Sangeet Kumar Meena, learned authorized representative appearing for the department however supported the impugned order. 11. The submissions advanced by the learned consultant for the appellant and the learned authorized representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act, 1994, as amended, taxes cleaning of 'objects or premises' of (i) commercial or industrial buildings and premises thereof, or (ii) factory, plant or machinery, tank or reservoir of such commercial or industrial building and premises thereof. Fumigation of export cargo including agricultural/horticultural produce, whether loaded into containers or otherwise, does not satisfy the statutory definition of 'cleaning activity under section 65(24b) of the Finance Act, 1994. (b) As a matter of abundant precaution, Government had also issued Notification No. 41/2007-ST dated 6.10.2007, as amended by Notification No. 42/2007-ST dated 29.11.2007 to exempt specialised cleaning services of containers used for export goods. This was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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