TMI Blog2010 (3) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal in Daelim Industrial Co. Ltd. v. CCE (2003 -TMI - 36 - CEGAT, NEW DELHI) wherein it was held by the Tribunal that a turnkey contract could not be vivisected and part of it subjected to service tax - The appellants have made out a prima facie case against the demand and penalties.- - Decided in favour of assessee. - ST/489 OF 2009 - 208 OF 2010 - Dated:- 8-3-2010 - M.V. RAVINDRAN, P. KARTHIKEYAN, JJ. ORDER P. Karthikeyan, Technical Member. - In the instant application, the appellant seeks waiver of pre-deposit and stay of recovery of the amounts adjudged against it by the adjudicating authority. Heard both sides. 2. The impugned order confirmed the following liabilities against the appellants :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vities such as crushing, screening, grading, produced and processing of crude iron ore into end products of two or more types of iron ore namely, calibrated iron ore lumps and iron fines undertaken by the appellants for their clients during the impugned period should be classified under the category of'business auxiliary service'. 4. We find that a combined demand has been confirmed for the activities classified by the Commissioner upder two separate taxable entries. We find that in CMS (India) Operations Maintenance Co. (P.) Ltd. v. CCE [2007] 10 STT 65 (Chennai - CESTAT), the Tribunal observed as follows in paragraph 29 of the said order :- 29. ..................... A works contract for manufacture of an item as presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) to (vi), such as billing, issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customers or vendor, public relation services, management or supervision and includes services as a commission agent, but does not include any information technology service and any activity that amounts to manufacture within the meaning of clause (f) of section 2 of the Central Excise Act, 1944. 5. The appellants are found to have been engaged in production of goods for or on behalf of the clients, the goods being iron ore. As per definition of 'Business Auxiliary Service', an activity amounting to manufacture envisaged in section 2(f) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness Auxiliary Service. The appellants have substantiated their claim that production of iron ore is an exigible activity by reproducing Chapter 2601 of the Central Excise Tariff, 1985 (provision for ores) and Notification No. 4/2006-CE dated 1-3-2006 wherein ores falling under CSH 2601 to 2617 have been subjected to nil rate of duty. 6. As regards the liability found against the appellants under the heading 'site formation and clearance, excavation and earth moving and demolition service' for having undertaken activities such as drilling, blasting, excavation of iron ore and raising of iron ore, we find that the relevant entry reads as follows : (97a) site formation and clearance, excavation and earthmoving and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and boring, overburden removal and other development and preparation services of mineral properties and site, and other similar excavating and earth-moving services. Hence, these activities are taxable under the category of site formation and clearance, excavation and earth-moving and demolition service with effect from 16-6-2005. 7. We find that the impugned activities of surveying, drilling, blasting excavation and raising iron ore, transporting them for the purpose of sorting into iron ore lumps and iron ore fines, crushing, grading, etc. are prima facie 'mining of mineral, oil or gas service brought under the service tax net from 1-6-2007. The period of dispute in the instant case is from 1-4-2006 to 31-3-2007. Therefore, prim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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