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2024 (3) TMI 642 - AT - Service TaxClassification of service - activity of transporting waste from mine head to waste dump yard within the mine leased area - taxable as mining service or as Goods Transport Agency service - expenditure incurred by the appellant on feasibility study for acquiring/procuring coal mines outside India would be classified under Management Consultants Service or not - Cenvat Credit rightly taken on tippers and dumpers supplied to M/s AMR Constructions Ltd during the course of providing output service supply of tangible goods or not - extended period of limitation. Whether the activity of transporting waste from mine head to waste dump yard within the mine leased area, would be taxable as ‘mining service’ or as ‘Goods Transport Agency service’ in facts of present case? - HELD THAT:- The services are, therefore, primarily of transportation as the assessee is not engaged in winning the ore. Further, there are force in the submission of the appellant that the tenor of the agreement is an important factor while determining the classification. The agreement between the parties simply provides the rate for transportation per tonne from mine head to the dump Yard. Merely because transportation services are being rendered within the mine lease area cannot make the services mining services, unless it is an integrated contract, which includes transportation of waste as well as mining activity, which we find from record is not the case of the department - appropriate classification in so far as the aforesaid activity is concerned would be goods transport agency services and not mining services - no case of suppression or willful misstatement has been made out in the present case as the department is not clear about the classification issue when they had issued the Show Cause Notice. Therefore, the demand of Service Tax confirmed against the appellant is set aside. Whether the expenditure incurred by the appellant on feasibility study for acquiring/procuring coal mines outside India would be classified under “Management Consultants Service’? - HELD THAT:- The services rendered should be in connection with management of any organization or business. If the services are not related to management of any business or organization, then it would not fall under meaning of the term ‘management or business consultant’ - issue of classification of feasibility study services is now settled in the case of M/S BMD PVT. LTD. VERSUS CCE, JAIPUR [2016 (12) TMI 1395 - CESTAT NEW DELHI], relied upon by the appellant wherein it has been held that feasibility study would be covered under “market research agency service - the demand of Rs.5,63,009/-, confirmed against the appellant, is set aside. Whether Cenvat Credit was rightly taken on ‘tippers and dumpers’ supplied to M/s AMR Constructions Ltd during the course of providing output service “supply of tangible goods”? - HELD THAT:- The issue is squarely covered by the precedent decision of this Tribunal in M/S IBC LTD. VERSUS CC, & ST, TIRUPATI [2016 (8) TMI 1029 - CESTAT HYDERABAD] - it is found that under similar circumstances for the period April 2008 to September 2009 it was held that the for supply of tangible goods namely dumpers and tippers, will need to be considered as primary requirement for providing the output service of SOTG. We also find that insertion of goods like tippers dumpers and equipments as eligible input/capital goods vide notification dated 22/06/2010, is Clarificatory in nature. This is further explained or amplified vide Board instructions/circular dated 23/10/2008. We therefore hold that taking of cenvat credit on tippers and dumpers cannot be said to be irregular. Therefore, the demand confirmed by denying the Cenvat credit of Rs.5,88,51,540/- and Rs.4,94,41,516/- are set aside. Whether extended period of limitation have been rightly invoked? - HELD THAT:- Appellant was registered with the department, had been maintaining regular books of accounts and were also filing the returns regularly. The issues involved and are allegations are as a result of change of opinion on the part of revenue. This is evident on the face of record, as for the same service of transportation in mining area, when provided by the Appellant was proposed to be classified as mining service instead of GTA service, on the other hand the same service when received by the Appellant for a different site/mine was proposed to be taxed as GTA services. Accordingly, extended period of limitation is not available to revenue. The impugned order set aside - appeal allowed.
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