TMI Blog2010 (3) TMI 478X X X X Extracts X X X X X X X X Extracts X X X X ..... ENTED BY: S/Shri V. Raghuraman and C.R. Raghavachari, Advocates, for the Appellant. Smt. Joy Kumari Chander, It. CDR, for the Respondent. [Order per: P. Karthikeyan, Member (T)]. - In the interest application, the appellant seeks waiver of pre-deposit and stay of recovery of the amounts adjudged against it by the adjudicating authority. Heard both sides. 2. The impugned order confirmed the following liabilities against the appellants:- (i) Service tax of Rs.64,21,913/- (ii) Interest (not quantified); (iii) Penalty of Rs.200/- per day or Rs.5000/- whichever is higher under section 77 (1)(a) of the Finance Act, 1994 (the Act). (iv) Penalty of Rs.2000/- under section 77 (1)(b) of the Act; (v) Penalty of Rs.200/- per day o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbined demand has been confirmed for the activities classified by the Commissioner under two separate taxable entries. We find that in CMS (I) Operations and Maintenance Co. P. Ltd. vs. CCE, Pondicherry [2007 (7) S.T.R. 369 (Tri.-Chennai)], the Tribunal observed as follows in paragraph 29 of the said order:- "29.............A works contract for manufacture of an item as prescribed in Section 2(f) of the Central Excise Act, 1944 cannot be vivisected to charge tax on some part of the activities involved. In our considered view, this is what the lower authorities have done in the cases covered by both the appeals. Moreover, in the first appeal there is demand on different activities of the O and M contractor categorized as Management Consul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acture" within the meaning of clause (f) of Section 2 of the Central Excise Act, 1944." 5. The appellants are found to have been engaged in production of goods for on behalf of the clients, the goods being iron ore. As per definition of 'Business Auxiliary Service', an activity amounting to manufacture envisaged in Section 2(f) of the Central Excise Act, 1944 cannot be classified as 'Business Auxiliary Service'. It has been brought to our notice that vide Order-in-Original dated 19.11.2008, the same Commissioner of Central Excise had passed an order demanding Central Excise duty on iron ore produced in mining by the appellant's sister concern M/s. Tungabhadra Special Products (Division of Tungabhadra Minerals Pvt. Ltd.). Therefore, the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and clearance, excavation and earth moving and demolition service' for having undertaken activities such as drilling, blasting, excavation of iron ore and raising of iron ore, we find that the relevant entry reads as follows: "(97a) "site formation and clearance, excavation and earthmoving 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 ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sorting into iron ore lumps and iron ore fines, crushing, grading etc. are prima facie 'mining of mineral, oil or gas service brought under the service tax net from 1.6.2007. The period of dispute in the instant case is from 1.4.2006 to 31.3.2007. Therefore, prima facie the impugned activities cannot be taxed under any pre-existing entry. In M. Ramakrishna Reddy vs. CCE, Tirupathi [2009 (13) STR 661 (Tri.-Bang.)] dealing with similar demand under site formation and clearance, excavation and earthmoving and demolition and clearance, excavation and earthmoving and demolition services, the Tribunal held that essential character of work undertaken was mining or winning of minerals and the activity was classifiable as 'mining service'. Site for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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