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2022 (6) TMI 43 - AT - Service TaxLevy of penalty u/s 78 of FA - Non-payment of Service Tax - Cargo Handling Services or mining services - work of loading, unloading and transportation of a particular quantity of coal from coalface to railway siding within the specified time frame - whether the appellant had provided ‘cargo handling service’ for the period 01.04.2007 to 30.05.2007 and ‘mining service’ for the period 01.06.2007? - HELD THAT:- The taxable service of ‘mining’ defined under section 65 (105) (zzzy) of the Finance Act means any service provided or to be provided to any person by any other person, in relation to mining of mineral, oil or gas. The Commissioner has placed reliance upon the definition of “mines” under the Mines Act, 1952 and has observed that all processing including handling and movement of coal from one point of mines to dispatch point of mines are activities carried out in relation to mining of minerals. This issue was examined by the Supreme Court in COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR VERSUS SINGH TRANSPORTERS [2017 (7) TMI 494 - SUPREME COURT]. The issue involved was whether coal transported from pitheads of the mines to the railway sidings would fall within the taxable service defined under section 65 (105) (zzzy) of the Finance Act. The Supreme Court held that the activity would appropriately be classified under the head “transport of goods by road service” and the activity does not involve any service in relation to “mining of mineral” as contemplated under section 65(105) (zzzy) of the Finance Act. The Supreme Court also held that the definition of “mines” has no apparent nexus with the activity undertaken under the service rendered - the Supreme Court categorically held that the activity undertaken by the appellant would fall under the head ‘transportation of goods by road service’. The Commissioner (Appeals) was, therefore, not justified in holding that the appellant had undertaken the activity of mining service w.e.f. 01.06.2007. It would also not possible to sustain the order passed by the Commissioner holding that these activities undertaken by the appellant prior to 01.06.2007 would fall under the category of ‘cargo handling service’. This is for the reason that the Supreme Court categorically held that the activity undertaken by the appellant would fall under the heading ‘transport of goods by road service’. The appellant had, therefore, not provided ‘cargo handling service’ prior to 01.06.2007 under section 65(23) of the Finance Act. Appeal allowed - decided in favor of appellant.
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