2017 (5) TMI 344 - AT - Service Tax

Service of removing jungle & bushes not taxable as Site Formation/Clearance. Appeal allowed. Order set aside.

The Tribunal held that the service of removing jungle and bushes within a building area does not fall under the defined category of Site Formation and ... Site Formation and Clearance, Excavation, Earthmoving and Demolition Services - whether the service of removing of jungle and bushes inside the building area is chargeable to Service Tax under the head of Site Formation and Clearance, Excavation, Earthmoving and Demolition Services? - Held that: - on perusal of definition of Site Formation and Clearance, Excavation, Earthmoving and Demolition Services, defined under clause 97(a) of Section 65 of the FA, 1994, it can be seen that the main clause of the definition does not cover the service of the appellant i.e. removing of jungle and bushes. Even if it is considered the inclusion clause of the definition, by no stretch of imagination, the same can be classified under the inclusion category of the definition of the subject service - service namely, removing of jungle and bushes in the existing premises of the building does not fall under the definition of Site Formation and Clearance, Excavation, Earthmoving and Demolition Services - appeal allowed - decided in favor of appellant. Issues:Whether the service of removing jungle and bushes inside the building area is chargeable to Service Tax under the head of Site Formation and Clearance, Excavation, Earthmoving and Demolition Services.Analysis:The appellant argued that the service provided, clearing jungle and bushes within the building premises, does not fall under the category of Site Formation and Clearance, Excavation, Earthmoving, and Demolition Services. The appellant's counsel referred to a circular stating that only activities prior to construction are covered under this category. As the construction was already completed, the service of removing jungle and bushes for cleaning purposes should not be taxed under the proposed category.The Revenue, represented by the Assistant Commissioner, contended that the inclusion portion of the definition of Site Formation and Clearance, Excavation, Earthmoving, and Demolition Services is indicative and not exhaustive. Hence, the service of removing jungle and bushes should be considered taxable under this category.Upon careful consideration, the Tribunal examined the definition of Site Formation and Clearance, Excavation, Earthmoving, and Demolition Services under the Finance Act, 1994. The definition included various activities like drilling, soil stabilization, and demolition, but did not explicitly cover the service of removing jungle and bushes. Even the inclusion clause did not classify such services under the subject service definition. Therefore, the Tribunal concluded that the service of removing jungle and bushes within the building premises does not fall under the defined category of Site Formation and Clearance, Excavation, Earthmoving, and Demolition Services, and hence, is not taxable as proposed by the Department.Consequently, the impugned order demanding Service Tax on the service of removing jungle and bushes was set aside, and the appeal was allowed on 28.04.2017.