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2022 (3) TMI 511 - AT - Service TaxClassification of services - Site formation and Clearance, Excavation and Earthmoving and Demolition Service or Mining service - service of removal of overburden in relation to mining of lignite - HELD THAT:- From the certificate issued by the Gujarat Minerals Development Corporation Ltd., who is the recipient of service in this case, makes it clear that the work of overburden/interburden removal is a part of mining during the course of mining therefore. The service is pre-dominantly related to mining. It is found that even if, the contention of the revenue that the activities of the appellant taken independently is of ‘Site Formation and Clearance, Excavation and Earth Moving and Demolition but at the same time, all these activities undertaken by the appellant is for the purpose of mining only. In this position, it is found that if at all, there is a doubt about the particular service to be classified under one or more category the principle laid down for classification of taxable service under Section 65A need to be applied. From the provision for classification of taxable service, it is provided that if taxable service is prima facie classified under two or more sub-clauses of clauses under Section 65, classification shall be effected on the basis of sub-clauses which provides the most specific description as compared to sub-clauses providing more general description - In the facts of the present case, it is undoubtedly clear that between appellant and the service recipient M/s. GMDC even though the nature of activity independently is of excavation and removal of soil but the objective of this activity is for mining only. In case of any mining activity, the activity of removal of over burden is inevitable. It is also pertinent to note that the appellant, on the same service, paid service tax under the category of ‘Mining Service’ with effect from 1.6.2007 and it is admitted fact that the revenue had accepted the classification of the same service under ‘Mining Service’. It also strengthens the case of the appellant that the service provided by them is of ‘Mining Service’ and does not fall under the category of ‘Site Formation and Clearance, Excavation and Earth Moving and Demolition Services’ - the service per-se is a Mining Service. The appellant have provided the Mining Service which was not liable to service tax during the relevant period in this case. Therefore, the impugned order is not sustainable hence the same is set aside - Appeal allowed - decided in favor of appellant.
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