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TMI Blog2025 (1) TMI 895X X X X Extracts X X X X X X X X Extracts X X X X ..... demand under this heading is required to be set aside. Time limitation - HELD THAT:- No case has been made out by the Revenue towards suppression with an intent to evade Service Tax payment. Therefore, the confirmed demand for the extended period is not legally sustainable and the same is set aside on account of limitation also. Conclusion - The activities undertaken by the Appellant are not chargeable to service tax under the category of 'Cleaning Service'. The demands for service tax under 'Cleaning Service' and 'GTA Service' were set aside. The demand for the extended period was deemed time-barred, and the penalty under Section 78 was not justified. The appeal is allowed on merits fully and partly on account of limitation. - HON BLE MR. R. MURALIDHAR , MEMBER ( JUDICIAL ) And HON BLE MR. RAJEEV TANDON , MEMBER ( TECHNICAL ) Mr. Aditya Dutta , Advocate for the Appellant Mr P. Das , Authorized Representative for the Respondent ORDER PER R. MURALIDHAR : The appellants were engaged during the material time of 2004- 05 to 2006-07 in the business of excavation and evacuation of Ash Pond for Durgapur Projects Limited. They also transported fly ash from the Ko ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and Durgapur Projects Limited under Work Order Nos. DPL/SE/(c)/PS/20 dated 24.04.2006 and DPL/SM(c)/PS/95 dated 11.10.2006. They are also engaged in evacuation of earth as sub- contractor of Macnally Bharat Ltd. in Sagardighi Thermal Project, Murshidabad. For evacuation of ash-pond they are neither charging nor paying any service tax. The excavated ash is moved from the ash pond to the sited demarcated within the mining premises of the client. This activity is erroneously being termed as GTA service by the Revenue. Sometimes they have loaded Dry Ash from Silos onto trucks for subsequent transportation to the buyer s places like Ultra Tech Cements Ltd. and Ambuja Cements Ltd. In respect of such services, the appellant has paid Service Tax under Business Auxiliary Service, which is not being disputed by the Dept. 6. As per the Ld Counsel, the portion of the job performed towards evacuation of ash by mechanical means from ash pond and adjacent decantation of pond of power generation station of DPL which is part of the industrial plant or the industrial premises and transporting the same to the specified places as demarcated by the power plant authority within the power plant area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they would do so. 11. The Ld Counsel also makes a submission that the SCN issued on 28.01.2008 was issued for the period 2004-05 to 2006-07, is time barred for the period 2004-05 to April 2006 to September 2006. The Return for the period April 2006 to September 2006 has been filed in October 2006. Hence, the normal period ends on 24th October 2007. During the period under litigation, the normal period was One year. He submits that the appellant is duly registered with the Service Tax Dept and has been discharging Service Tax payment and also filing their Returns in the normal course. The investigation was taken up and statement of the Managing Director was recorded on 30.05.2006 about the activities undertaken by the appellant. The appellant submitted the following documents at the time of recording of Statement: (i) Copy of work order DPL/SE(C)/PS/20 dated 24.04.2006 for M/s. DPL. (ii) Letter of M/s. BSCECPL address to the Department dated 01.12.2006 and 08.02.2007 regarding payment of service tax on cleaning service. (iii) Invoices raised to DPL in respect of work order DPL/SE(C)/PS/20 dated 24.04.2006 of M/s. DPL. 12. Thus the Dept. was aware of the contracts towards evacuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act, 1994. Accordingly, the Commissioner has confirmed the demand of service tax and Education Cess amounting to Rs 25,70,853/-, as demanded in the Notice dated, besides demanding interest and imposing penalty equal to the service tax confirmed under Section 78 of the Finance Act, 1994. 6. We observe that the Appellant has undertaken the activity of evacuation of fly ash from the silos and hydro bins of various thermal power stations of M/s CESC Ltd. The Appellant considered this activity as transportation of goods liable to service tax under the category of GTA service, whereas the Department considered that the activities would fall under the category of cleaning service as defined in Section 65(24b) of the Finance Act, 1994. 8. We find that the issue is no more res Integra and has been decided by the Tribunal in the case of Commissioner of Central Excise Service Tax, Ranchi vs. M/s Hindustan Steel works construction Ltd. reported in 2018 (11) TMI 1217-CESTAT, Kolkata. 9. We observe that the facts of the present case are squarely covered by the aforesaid decision of this Bench. Accordingly, we hold that the activities undertaken by the Appellant are not chargeable to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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