2016 (11) TMI 516

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....ervice" for 2005-06 to 2008-09 taxable under section 65 (105) (zzzd) of Finance Act, 1994, 'transportation of goods by road service' for 2004-05 to 2008-09 taxable under section 65 (105) (zzp) of Finance Act, 1994, 'site formation and clearance, excavation and earthmoving and demolition service' from 2007 onwards taxable under section 65 (105) (zzza) of Finance Act, 1994. It is alleged that even after it was pointed out by the tax authorities, registration was taken only for the 'goods transport agency service' and 'clearing agency service' on 16^th September 2008 and 13^th September 2009 respectively. Allegedly, Rs. 39,63,718/- comprising Rs. 2,58,633/-, Rs. 3,43,483/- and Rs. 33,40,764/- respectively was liable to be recovered as tax on a....

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....erest and penalty relating to rendering of 'site formation and clearance, excavation and earthmoving and demolition service.' 4. Appellant-assessee claims that the impugned order, by failure to articulate the option of paying penalty at 25% of the amount imposed, had denied them the privilege and prays for an unequivocal direction to that effect. On a perusal of the second proviso to section 78 of Finance Act, 1994 which reads thus: 'Provided further that where such service tax and the interest payable thereon is paid within thirty days from the date of communication of order of the Central Excise Officer determining such service tax, the amount of penalty liable to be paid by such person under the first proviso shall be twenty-five p....

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.... the passage of cables or drain pipes; or (iv) Land reclamation work; or (iv) Contaminated top soil stripping work; or (v) Demolition and wrecking of building, structure or road, but does not include such services provided in relation to agriculture, irrigation, watershed development and drilling, digging, repairing, renovating or restoring of water sources or water bodies.' 6. The ground on which Revenue seeks confirmation of the tax is that the definition is an inclusive one in which the composition of the description is the primary activity to be taxed with the inclusive elements not to be excluded from its ambit under any circumstances. Pointing out that the original authority has isolated the excavation activity in the work or....

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....nd' was set up on site that must have been subject to activity that is taxable but, here, we are concerned with the enhancement of height of that storage facility. This is construction which, even if not conforming to the description of that taxable service is, nevertheless, a civil work. The addition to the retaining embankment involves, according to the work order, cleaning of the base and excavation which are elements in the description of the taxable service in section 65 (105)(zzza) of Finance Act, 1994, viz., "taxable service" means any service provided or to be provided to any person, by any other person, in relation to site formation and clearance, excavation and earthmoving and demolition and such other similar activities and th....