TaxTMI 
TaxTMI 
2020 (11) TMI 534
X X X X Extracts X X X X
X X X X Extracts X X X X
....ous waste arising out of the refining process of waste oil. Incineration is the process of treating the hazardous waste so that it can be disposed off in a manner least affecting the environment. The process of incineration involves the burning of hazardous waste upto a certain temperature and then disposing off the ash to the statutory landfill site. It is stated that the said plant was set up by the Appellant to comply with the guidelines issued by the Ministry of Environment and Forest. 3. Initially, the plant was set up for captive use by the Appellant, but the Appellant subsequently started incinerating the waste generated by other industries. For this purpose, the Appellant entered into agreements with companies whereby it agreed to receive the hazardous waste, which would be treated in compliance with the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 at the incineration plant of the Appellant. Under the agreements, the companies package the waste and deliver it to the premises of the Appellant. 4. The Department, however, formed a view that by incinerating the waste of other industries, the Appellant was rendering 'cleaning activity' se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed Representative of the Department have been considered. 9. The issue that arises for consideration in this appeal is as to whether the Appellant rendered "cleaning activity" services in terms of section 65 (24b) of the Finance Act taxable under section 65(105)(zzzd) of the Finance Act by incinerating the waste of other industries. 10. The aforesaid two sections are reproduced below: (i) "Section 65 (24b) "cleaning activity" means cleaning, including specialised cleaning services such as disinfecting, exterminating or sterilising 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 buildings and premises thereof, but does not include such services in relation to agriculture, horticulture, animal husbandry or dairying. (ii) Section 65 (105) (zzzd) "taxable service" means any service provided or to be provided to any person, by any other person, in relation to cleaning activity." 11. As noticed above, the Appellant has set up an incineration of hazardous waste plant. The Appellant incinerates its own waste ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aste ? service falls under the ambit of exterminating of objects because the hazardous material was incinerated in the plant of the assessee and charges were taken from the ? whose material was incinerated. Such activity appears to be covered under exterminating of objects as defined in the definition of the cleaning activity. The total service including cess of Rs. 1,21,20,262/- was payable on the aforesaid." 15. The letter dated January 20, 2016 by the Superintendant seeks to record that the audit objections. 16. The Appellant informed the Commissioner, in response to the show cause notice, by a letter dated February 3, 2016 that the demand should be dropped or the show cause notice should be withdrawn since the audit objection itself had been dropped. The relevant portion of the letter is reproduced below; "In continuation to our reply vide our letter no. CPL/2015-16/CE-AG/3010 dated 17-11-2015 in response to your aforesaid SCN, we further bring to your kind notice that aforesaid SCN has been issued to us on the basis of Part II(A) of Para 1 of LAR No. CE-17/13-14. Now the AG audit has settled the above para vide their letter No. RAINDT.II/I-13011/CE-17/2013-14 da....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as held that in such a situation the demand cannot be confirmed. The relevant paragraph of the decision is reproduced below; "7. As the audit objection raised by the revenue has already been settled by them on 18.05.2007, in that circumstances, on the same audit objection, show cause notice cannot be issued to the appellant on 28.07.2009. Therefore, the whole of the demand on the basis of said objection is not sustainable and is also time barred." 20. In Hindustan Zinc Ltd., a Division Bench of this Tribunal also took the same view: "8. Moreover, on being enquired about the status of the audit para, the Ld. Departmental Representative has placed the correspondence between the jurisdictional Commissioner and Deputy Director, Central Revenue in respect of audit memo bearing No. SOF-08/ST/2014-15 on record in the course of hearing. The show cause notice dated 3-3-2017 was issued to the appellant on the basis of said audit para. From the perusal of these documents, we have noticed that the Deputy Director, CRA-II has communicated to the jurisdictional Commissioner through its letter dated 8-5-2018 that the audit para has been dropped. When the audit memo itself has....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er's Dictionary (Fourth Edition) (ii) Oxford Dictionary of English (Third Edition) (iii) Webster's Comprehensive Dictionary, (iv) Collins Advance Lear -ner's English Dictionary "To burn something completely" "Destroy (something, especially waste material) by burning" "To consume with fire, reduce to ashes" "When authorities incinerate rubbish or waste material, they burn it completely in a special container" "To kill all the animals or people in a particular place or of a particular type" -"killing, especially of a whole group of people or animal". "The act of process of exterminating or annihilation" "The term 'exterminate' is applied to groups or masses of men or animals". "To exterminate a group of people or animals means to kill all of them." 28. It is, therefore, clear that 'exterminating of objects' covers destroying insects, rodents and other pests in respect of objects/premises. Hence, the term 'extermination' has to be in connection with activities such as fumigation; pest control or other such activities which are in the form of treatment of premises / objects against animal or pest infestation. The impugne....