TMI Blog2022 (3) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... A 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 D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but it comprises of a series of activities involving drilling, excavation, overburden removal, extraction of mineral and other activities carried out at the mines during the course of mining. Appellant are paying service tax on the impugned service under the category of Mining Service w.e.f. 01.06.2007 and such payment of service tax under the category of Mining Services is accepted by the department. It is therefore appellant were not liable to pay any service tax under the category of site formation and clearance, excavation, earth moving and demolition service on the activity of Overburden Removal at Lignite Project undertaken in the course of mining of lignite in terms Tender No. LP-02/04-05. The said issue stand clarified by C.B.E.C. letter issued from F.No. 232/2/2006-CX.4 dated 12.11.2007. He also placed reliance on Section 65A of the Finance Act, 1944. On request of Appellant M/s Gujarat Minerals Development Corporation has issued the certificate dated. 06.03.2012 wherein it is specifically certified that the Appellant were assigned to work of removal of overburden to extraction of last mineral in the specified block of the mine. 2.1 He further submits that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the revenue or under the category of Mining service as contended by the appellant. As per the facts of the case, the appellant have carried out the service in terms of contract under Tender No.LP-2/04-05 and similar other contract. As per the contract document, the relevant clauses thereof are reproduced below:- 7. Exploration Interpretation Commissionerate of Geology Mining and GMDC have so far completed about 410 boreholes in this area. Outs of those about 172 boreholes were in the mined out area and about 50 boreholes are in the block IV area were over burden removal work has to be carried. The exploration data of block I IV has further scrutinized by GMDC and the general sequence of formation is observed as below, -Top soil -Sub soil -Limestone/Siderite -shale and clay -Lignite (with clay /shale intercalation) -Sand white. -Trap The constitution of over burden can be derived follows; 1. Top soil Sub Sol -15% 2. Limestone -7% 3. Shale/Clay -45% 4. Carbonaceous Clay/Shale -35% 1. METHOD OF WORKING i) The equipment deployed by the contractor and methods and organization for handl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued a certificated dated 16.3.2012 which is reproduced below: From the above 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. We find 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, we find 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. The same is reproduced below:- SECTION 65A. Classification of taxable services. (1) For the purposes of this Chapter, classification of taxable services shall be determined according to the terms of the sub-clauses of clause (105) of section 65; (2) When for any reason, a taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falls under the Site Formation, Clearance and Excavation and Earthmoving and Demolition services as contended by Revenue or under Mining Service as contended by the appellants. For the sake of convenience, Section 65(97a), 65(105)(zzza) and Section 65(105)(zzzy) are reproduced below :- Section 65(97a) Site formation and clearance, excavation and earth moving and demolition includes (i) Drilling, boring and core extraction services for construction, geophysical, geological or similar purposes; or (ii) Soil stabilization; or (iii) Horizontal drilling for the passage of cables or drain 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 . Section 65 (105)(zzza) - to any person, by any other person, in relation to site formation and clearance, excavation and earthmoving and demolition and such other similar activities . Section 6 ..... 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