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2023 (7) TMI 1336 - CESTAT KOLKATALevy of service tax - declared service or not - mining of Iron Ore and Manganese at Katamati Iron Ore and grant of lease of mines by the Govt. of Odisha - whether the Appellant has rendered any Service as defined in clause (44) of Section 65B of the Finance Act, 1944? - Extended period of limitation - penalty - suppression of facts or not. HELD THAT:- As per clause (44) of Section 65B, ‘Service’ means any activity carried out by a person for another for consideration, and includes a ‘Declared Service’. Clause (22) of Section 65B of the Act defines ‘Declared Service’ as “an activity carried out by a person for another for consideration and specified in Section 66E of the Act”. In the present case the act of the Appellant tolerated by the Government is the act of conversion/diversion of forest land and use of the same for non-forestry purposes and consideration has been paid for the purpose of tolerating the mining activity by the Government. And for such act of toleration by the Govt., the appellant have paid compensatory levies/charges to CAMPA Fund which is being administered under the aegis of Central Government. Accordingly, the impugned order justified the demand and confirmed the same. The clearance granted by Ministry of Environment, Forest and Climate Change for usage of the forest land falling under the said project for non forest purposes, cannot be considered as a ‘Declared Service’ as defined under Section 66E(e) of the Finance Act, 1944 and the charges of NPV paid by the Appellant cannot be considered as ‘Consideration’ for the said service - the demand of service tax along with interest, in the impugned order is not sustainable. Extended period of limitation - penalty - suppression of facts or not - HELD THAT:- The Appellant has not suppressed any information from the department. In fact the entire NPV was paid to the CAMPA Fund as per law. Hence, extended period cannot be invoked to demand Service tax. As there is no suppression established, penalty under Section 78 of the Finance Act, 1994 not imposable in this case. The impugned order set aside - appeal allowed.
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