TaxTMI 
TaxTMI 
2023 (8) TMI 57
X X X X Extracts X X X X
X X X X Extracts X X X X
.....2013 rejected the appeal filed by the appellant for non-payment of pre-deposit; on an appeal filed by the appellant, Punjab & Haryana High Court vide Order dated 04.03.2015 dismissed the order of the Tribunal and directed the Tribunal to hear the appeal without payment of pre-deposit, of duty confirmed on the "Cleaning Service", while directing the appellants to pre-deposit the amounts in respect of "Management, Maintenance and Repair"; CESTAT vide Order dated 06.11.2015 restored the appeal which is before us. 2. Shri G.S. Sandhe, learned Counsel appearing for the appellant submits that the demand raised is under four categories i.e. Cleaning Service (Rs.29,60,791/-); Maintenance or Repair/ Management, Maintenance or Repair Service (Rs.21,94,110/-); Construction of Complex Service (Rs.21,49,623 + Rs.1,34,681/-) and Industrial or Commercial Construction Service (Rs.49,191/-). 3. Coming to the first demand on "Cleaning Service", the appellants submit that it is clear from the work order that the activity undertaken by the appellants is loading of ash in trucks/ Dumpers from the ash pond and transporting/ dumping/ stacking the same in the peripheral area provided by National Fertil....
X X X X Extracts X X X X
X X X X Extracts X X X X
....el submits that the construction undertaken, of 36 units Type-I S/S Quarters (Ganghut) (10 at Rampura Phul, 8 at Atal, 10, at Barmala and 8 at Kilanwali stations) and other allied works, by the appellants for Northern Railway does not fall under this category as the work order clearly specified the number of residential units being less than twelve and not part of any complex. 5.1. On the construction under for M/s Ambuja Cement, learned Counsel submits that the work order dated 01.01.2008 mentions construction of 80 Units, Type-I (D/S Qtr. Replacement of condemned qtrs. Block No.111 (12 units), Block No.300 (3 Units), Block No. 285 (8 units), Block No.268 (19 units), Block 269 (19 units) & Block No.270 (19 units) in colony No.1 & $ at Firozpur under ADEN/I-FZR of Railways. He submits that as these units are not more than 20 at a place and have been got constructed by M/s Ambuja Cements for their personal use, no service tax can be levied as held in Khurana Engineering Works- 2011 (21) STR 115 (Tri. Ahm.) and as per Departmental clarification F.No. B 1/6/2005-TRU dated 27.07.2005. 6. Regarding the demand of service tax of Rs.49,191/- for the construction of pump house for hydrant....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rectly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use; however to avail this exemption, the building has to be constructed by such person by directly engaging any other person for designing or planning of the layout, whereas in the instant case, the appellant has been engaged by M/s NFL or M/s Ambuja Cements, who cannot be said to be persons who got the houses constructed for own purpose. He submits that the judgment of CESTAT in the case of Khurana Engineering (supra) relied upon by the appellants will not be of any help to the appellants as the appeal in this case before Hon'ble Gujarat High Court was withdrawn on monetary grounds and therefore, the issue has not attained finality. 8.3. Coming to the service tax on hydrant systems for the pump house, learned AR submits that the Adjudicating Authority has rightly held that pump house is constructed to house Fire hydrant system, with in the premises of M/s Ambuja Cements, which is certainly an industrial premises; that all activities within that premises relate to industrial activities of the service recipient; that Fire Hydrant system installed ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ant 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;]" 12. A plain reading of the definition gives to understand that the activity covered by the above definition is not transportation as is done by the appellant; understandably, all types of cleaning are not covered by this definition; we find that Kolkata Bench of Tribunal in the case of Calcutta Industrial Supply Corporation (supra) held that : it is seen from the letter dated 03.02.2004 of DVC that the appellant was awarded tender for excavation of ash from different fields of ash ponds of DTPS, DVC, Waria. Nuisance free transportation and disposal of ash in abandoned mines of ECL. It appears that the purpose of the tender is for disposal of ash in the abandoned mines of ECL. The appellant is engaged for transportation and disposal of ash, in the abandoned mines. The letter does not show that the appellant was engaged for cleaning of the premises. Therefore, the demand of service tax under the category of Cleaning Service is not justified. 12.1. We find that the facts of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ngs and other similar services; or (c) repair, alteration, renovation or restoration of, or similar services relation to, residential complex;] 14. On-going through the above, we find that the appellant's contention has a force; the service "Management, Maintenance or Repair" is of general nature and could belong to any activity of repair whereas the activity undertaken by the appellant is with relation to roads and buildings, which specifically covers the activity of the appellant. We find that as per provision of Section 65A, specific description is to be preferred to a generic description. Moreover, we find that the appellants have undertaken mostly the repair of roads which is exempted by Section 97 as well as by Notification No.24/2009. If we consider the activity of the appellant as repair of roads and buildings, it gets categorized under "Commercial or Industrial Construction" and therefore, a show-cause notice issued under the "Management, Maintenance or Repair Service" cannot be sustained. On the other hand, if the activity is considered as repair of road, the same stands exempted. Either way the demand under this Head is liable to be set aside. 15. The impugned order....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the Department is based on the claim that the appellants have not submitted any proof regarding the construction of houses. We find that this approach is not correct. It is the Department who is alleging that the appellant has rendered taxable services; therefore, it is incumbent on the Department to prove the liability of the appellant with documentary proof; it is not open for the Department to rely upon absence of proof on the part of the appellant in their defence. The Department had made no efforts whatsoever to find out whether the said complexes constructed by the appellants fulfilled the criteria of "Residential Complex" by having 12 or more units, a common area and anyone or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system. We are of the considered opinion that without doing so, allegation of construction of residential complex by the appellant has no force of law or facts thereof. For this purpose alone, the show-cause notice and the impugned order are not sustainable as far as the demand on Construction of Complex Service is concerned. 18. Regarding the claim of construction of the hou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the present case) would be liable to pay the Service Tax. 21. In view of this clear position of law indicated by the C.B.E. & C. itself, we are of the considered opinion that the Revenue cannot be allowed to argue against the legal position rightly explained by the C.B.E. & C. itself which can certainly be invoked and applied by this Court for interpreting the provisions of law on the principles of interpretation of Contemporenea Expositio and the Central Board of Excise and Customs or the highest Administrative body of the respondent Department itself has interpreted the provisions that the construction activities of this nature where Bi-parte or Tri-partite Agreements are entered into is clearly indicated in the said Circular, which clearly and rightly hold the sub-contractors liable to pay the Service Tax as it is the Sub-contractor who actually undertakes the construction activity. 22. In view of the undisputed factual matrix of the present case, that the sub-contractor M/s. Larsen and Toubro Limited has duly discharged the obligations to pay the Service Tax in the present Contract, we are at a loss to understand how the Revenue could again demand the Service Tax from t....