AI Drafter 
TaxTMI 
TaxTMI 
2019 (3) TMI 1435
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.... category of "Management, Maintenance and Repair Services". However the demands post 01.07.2012 were confirmed on the ground that the services are not covered under the Negative list w.e.f 01.07.2012. The Respondent as well as Appellant filed appeal before Commissioner (Appeals) against the adjudication order. The Commissioner (Appeals) held that the adjudicating authority in case of demand prior to 01.07.2012 has correctly considered that such activities are not within the ambit of "Management, Maintenance and Repair Services" of immovable property and hence he rejected the appeal filed by the revenue. In case of appeal filed by the Respondent for the period w.e.f 01.07.2012, the Commissioner (Appeals) held that the services involves of maintenance and developing of garden, trees, pots and cutting and sampling of plants, trees, grass, water, fertilizer and well within the definition of "agriculture activities" and allowed the appeal. Being aggrieved the revenue has filed the present appeal. 2. Shri T.K.Sikdar, Ld. Assistant Commissioner (AR) appearing for the revenue submits that the scope of the work involved was horticulture cleaning daily of garden and remove all leaves, and....
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....2 and the nature of works remain unchanged. The essential characteristic has not changed thereafter and it does not fall in the list of negative services after 01.07.2012. The contention of the Commissioner (Appeals) that the services fall under Section 66D (d) is incorrect as the activity does not fall under agriculture. 3. He submits that the definition of immovable property under 'Transfer of Property Act' would not be applicable as the same is restricted to transfer of property whereas the instant issue is different. The definition of term under a statute cannot be applied to other statute as held in case of Hotel & Restaurant Association V.s Star India Ltd. 2007 (5) STR 161 (SC). That the Commissioner (Appeals) has erred in relying upon the Tribunal order in case of ANS Construction Ltd. 2010 (17) STR 549 (TRI) as the case involved was upto 28.02.2006 whereas in the instant case period is from 01.05.2006. The later decisions of the Tribunal on the issue would prevail and has to be followed. The reliance placed upon the CBEC Guide by the Commissioner (Appeals) for the service provided after 01.07.2012 is incorrect as the said guide is neither a circular nor a manual of instr....
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....(TRI), Suresh Jaiswal 2016 (42) STR 97 (TRI) and Chotelal Virendra Kumar 2016 (41) STR 296 (TRI) are not applicable to the present case as in those cases the assessees had been appointed for management and maintenance of parks and roadside plantation as well as for other activities which were different from the present case. He also submits that the issue involved is of interpretation and the view taken by the Respondent has found acceptance with the Tribunal and therefore it cannot be said that was any wilful and deliberate intention for non payment of allegedly demanded service tax. 5. Heard both the sides and perused the records and documents. We find that in the present case the Respondent were undertaking activity of Plantation of trees, shrubs etc, Horticulture cleaning daily of garden and removal foe laves and unwanted vegetation, application of farm yard manure, application of fertilizers, edging of lawn, flower beds and weeding regularly, plant protection by using suitable insecticides and pesticides, pruning of trees when required. The revenue has demanded service tax under the category of "Management, Maintenance and Repair Services" on the ground that since the servi....
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....tting, harvesting, drying, cleaning, trimming, sun drying, fumigating, curing, sorting, grading, cooling or bulk packaging and such like operations which do not alter the essential characteristics of agricultural produce but make it only marketable for the primary market; (iv) Renting or leasing of agro machinery or vacant land with or without a structure incidental to its use; (v) Loading, unloading, packing, storage or warehousing of agricultural produce; (vi) Agricultural extension services; (vii) Services by any Agricultural Produce Marketing Committee or Board or services provided by a commission agent for sale or purchase of agricultural produce;" The word Agriculture has been defined in Section 65B (3) of the Finance Act, 1994 as - "Agriculture" means the cultivation of plants and rearing of all life forms of animal, except the rearing of horses, for food, fiber, fuel, raw material or other similar products. Section 66D (d) exempts the services related to production of any agriculture produce including cultivation, harvesting. Threshing plant protection. Thus the cultivation of plants and its protection is also included in Agriculture. The term "Horticulture" ....
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....#39; in the absence of statutory definition, would have the common parlance meaning. 'Horticulture' means 'the cultivation of garden'. 'Garden' means "an area of land, usually planted with grass, trees, flower beds, etc an area of land used for the cultivation of ornamental plants, herbs, fruit, vegetables, trees, etc." 7. In our view therefore such activities undertaken by the Respondent would not fall under the definition of 'management, maintenance or repair service'. The Appellant revenue has relied upon the tribunal decision in case of Tarachand Chaudhary 2016 (42) STR 83 (TRI), Suresh Jaiswal 2016 (42) STR 97 (TRI) and Chotelal Virendra Kumar 2016 (41) STR 296 (TRI). However, we find that the said judgments are not applicable to the present case as the facts are different. In those cases the assessees had been appointed for management and maintenance of parks and roadside plantation whereas in the present case the nature of activity is different. In the said cases the Jaipur Development Authority had given the composite contract which also included non agricultural activity for maintaining Public Park which is not the case here. Whereas, in ....