TMI Blog2023 (12) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... liability on brought out items used for fabrication at site, the scope for considering the activity as manufacture is eclipsed entirely. The Appellant is not liable to service tax under the category of 'Business Auxiliary Service' and hence the demands confirmed in the impugned order is not sustainable - the demands of duty along with interest and penalty confirmed in the impugned order is set aside - appeal allowed. - MR. R. MURALIDHAR MEMBER (JUDICIAL) AND MR. K. ANPAZHAKAN MEMBER (TECHNICAL) Shri Chirag Mehra, Chartered Accountant for the Appellant Shri J. Chattopoadhyay, Authorized Representative for the Respondent ORDER The Appellant M/s. North Eastern Coalfields, a unit of Coal India Limited, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bolpur, vide Final Order No.75012/2021 dated 05.01.2021. The same view was earlier taken by the Principal Bench, Tribunal, New Delhi in the case of M/s. Northern Coalfields Ltd. Vs Commissioner of Central Excise and Service Tax, Jabalpur vide Final Order Nos. 51761-51767/2019 dated 05.12.2019 and in the case of South Eastern Coalfields Ltd. Vs. Commissioner of Central Excise and Service Tax, Raipur, vide order dated 22.02.2018. On the basis of the said decisions, the Appellant prayed for setting aside the demands confirmed in the impugned order. 3. The Ld. D.R. reiterated the findings in the impugned order. 4. Heard both sides and perused the appeal documents. 5. We observe that the issue is no longer res integra, as the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 to April 24, 2015 proceedings by issuance of show cause notices were initiated by the jurisdictional Commissioner/Principal Commissioner of Central Excise against ICML alleging undervaluation of the transaction values declared for the said period, of bituminous coal manufactured and cleared from the mine, by non-inclusion of elements, namely, royalty, stowing excise duty, primary education cess, rural employment cess, public works cess, road cess and AMBH fees and thereby short paying central excise duty to the extent contained in the show cause notices. The proceedings under the said show cause notices have resulted in adjudication orders, passed by the Commissioner of Central Excise, Kolkata-I Commissionerate/Principal Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India provides for mutually exclusive levies, if certain activity amounts to manufacture , it cannot become or be contended to be service. This issue is no more res integra. 10.1 In the case of Commr. of CE ST Vs. Mahanadi Coalfields Ltd., Final Order No. 76585/2017 dated 21.08.2017 passed in Appeal No. STA/75816/2014, this Bench of the Tribunal, dealing with the self same issue, has held as follows: 2. Brief facts of the case are that during the period under consideration, the appellant was engaged in the crushing/sizing of the coal in its own mines. While receiving the consideration Studycafe.in Excise Appeal No.75388/2014 11 from the buyer in addition to the base price, the department is of the view that the crushin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 12 (iii) Northern Coalfields Ltd. Vs. CGST, CC CE, 2018 (8) TMI 1742 - CESTAT - DELHI. 11.3 In this regard reference is also made to the decision of a coordinate bench of the Tribunal in CCE Vs. Spectron Engineers Pvt. Ltd., 2020 (33) GSTL 223 (T). In para 4 of the order it has been observed as follows: 4. Having heard both sides, we find ourselves confronted with a dispute in which the jurisdictional central excise authorities seek to levy duties under Central Excise Act, 1944 while respondent claims leviability under Finance Act, 1994. That the respondent had been discharging service tax liability on job work and had been paying VAT on the material component is not in doubt. The original authority has placed reliance on the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cutting of coal to various sizes is not a service to the buyer, because buyer is being charged on per tonnage basis of coal including the sizing charge. Further, on this amount, appellant have paid excise duty, VAT, clean energy cess etc. We also find that the present appeals are squarely covered by the decision of this Tribunal in the case of Commr. of Central Excise Service Tax, BBSR-I Vs. Mahanadi Coal Fields Ltd. vide Final Order No. 76585/2017 dated 21.08.2017. On 4 perusal of the said order, we find that in the similar set of facts, the Tribunal has allowed the appeal holding as under:- 2. Brief facts of the case are that during the period under consideration, the appellant was engaged in the crushing/sizing of the coal in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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