TaxTMI 
TaxTMI 
2023 (6) TMI 412
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....ellant had under taken the work of Site grading, Roads, Boundary wall, Drains and associated works of Crude Oil Terminal of M/s Bina Refinery Project at Vadinar in the state of Gujarat. On the scrutiny of the documents, it appears that appellant have provided the service relating to Site Formation/ gradation and during the year 2007-08 received an amount of Rs. 4,31,80,708/- in respect of the above contract and accordingly service tax amounting to Rs. 53,37,135/- was payable under the category of "Site Formation and Clearance, Excavation and Earthmoving and Demolition Service" on such services appellant had short paid/ not paid the Service tax of Rs. 53,37,135/-. Accordingly, show cause notice dated. 19.10.2012 was issued to the appellant p....
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....atter, it is revealed from the description of service that most specific service category is "Industrial or commercial construction Services." Description provide site grading, roads, boundary walls, drains and associated works for crude oil terminal. The Appellant undertook the activity of construction of road, boundary walls, drainage line and associated works and therefore, the service in dispute ought to have classified under "Industrial and Commercial Construction Services". Revenue ought to have appreciated that site grading work was incidental to construction service. The contracts specifically provided site grading for the reasons that road, boundary wall and drainage line should be constructed after completion of site grading work.....
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....aken by the appellant precedent to the work of construction, it does not mean that the entire contract can be classified under the category of site formation. 2.4 He also submits that revenue ought to have appreciated that the definition of "Commercial or Industrial Construction Service" defined under Section 65(35b) of the Act covers construction of building or civil structure or construction of pipelines or conduits and therefore, the revenue erred in classifying the service in dispute under the category of "site formation". The revenue erred in holding on the basis of agreement, final invoice and service tax paid by the Appellant that service in dispute was classifiable under the category of site formation. Agreement specifically prov....
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....ature of services is contrary to the facts and proviso to Section 73 of the Act. The revenue have to appreciate that the bid was a public documents and the Appellant applied and were awarded the contract of construction. Since it was a public document, the revenue could not take shelter for invocation of large period that the Appellant did not declare the correct nature of service to the department. The revenue failed to appreciate that it is not the case that service tax was not paid on the transactions in dispute. The Appellant classified their service under the category of construction service and paid service tax. They filed returns along with the requisite documents as required under the law periodically. In such facts, burden was upon....
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....n pipes; or (iv)Land reclamation work; or (v)Contaminated top soil stripping work; or (vi)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." Further, under sub-clause (zzza) of Clause (105) of Section 65 of the Finance Act, 1994 "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, " It would be seen from the main part of the de....
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.... service is appropriately classifiable under „Commercial or Industrial Construction Services". The service tax demand from the appellant by treating their activity as taxable under section 65(97a) as "site formation and clearance, excavation and earth moving and demolition service" is not sustainable. 4.3 We also find that in the present matter demand is also not sustainable on limitation. It is undisputed that the appellant had been rendering the services and has been paying service tax on disputed service under the head construction services and also filing ST-3 returns regularly with the departmental authorities. If a tax is chargeable, in order to recover the service tax not paid or short paid a notice has to be issued under Se....