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TMI Blog2010 (12) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... them was not statutorily required to be paid. Accordingly, they preferred a refund claim for an amount of Rs. 1,58,11,007/-. The Adjudicating Authority after following the principles of natural justice rejected the said refund claim. Aggrieved by such an order, the respondents preferred an appeal before the Commissioner (Appeals) who set aside the impugned order and allowed their refund claim. Revenue is in appeal against such an order. 3. Ld. DR would draw our attention to the clarifications issued by the Board when the mining service came into the service tax net. He would submit that the services provided in relation to mineral mining oil and gas are comprehensively covered under the proposed service would indicate that earlier they were covered under "Site formation and clearance, excavation and earthmoving and demolition" service. He would also draw our attention to CBEC's circular dt. 12-11-2007 and submit that excavation, drilling and removal of overburdens in the mine would be covered under the definition of "Site formation and clearance, excavation and earthmoving and demolition" service. He would submit that in this case the contracts entered by the respondents with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the contracts which were produced before him :- 6. .................... On the other hand, as seen from the contract entered into by the appellants, they are primarily engaged for "Winning the minerals" i.e. extraction of iron ore and the other activities performed by them such as excavation, processing i.e. grading, sorting etc. and related/incidental transport, loading activities etc., are all incidental to the main activity of mining. The activity of excavation, undertaken by the appellants should be understood in the context of the primary activity undertaken by them, not withstanding the dictionary meaning of "excavation", on which the lower authority has so heavily harped." 7. .................................. 8. ..................................The lower authority has taken the view that the activity undertaken by the appellants is "excavation", which is already defined under the head ""Site formation and clearance, excavation and earthmoving and demolition" and hence the service undertaken by them does not attract the provisions of Section 65(2). In my view, this argument is not tenable. As already explained supra, the work undertaken by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled the law, which we may respectfully, reproduce :- "This appeal has been filed by the assessee seeking to challenge the impugned orders of the Tribunal, so also of the authorities below. The appeal was admitted vide order dated 14-2-2007, on the following substantial question of law :- "Whether in the facts and circumstances the claim to refund of service tax which has been paid in excess wrongly could have been refused?" 2. The necessary facts are, that the assessee voluntarily deposited certain amounts with the department, purportedly representing service tax on different services, which were charged by the assessee from its sister concerns/clients, for the period September 1999 to May 2000. Realising that those services were not chargeable to service tax, the assessee issued credit notes with respect to the entire amounts to its concerns/clients, and lodged a claim for refund on 24-11-2000, for a sum of Rs. 3,40,040/-, which was subsequently revised on 18-12-2000 to Rs. 3,36,980/-. 3. The learned Assistant Commissioner issued show cause notice to the assessee, calling upon, as to why the claim for refund be not rejected, as the assessee has not produced the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition of "Management Consultant". Thus it was found, that the services were taxable, and the appeal was dismissed. It may be observed, that contention of the learned counsel for the appellant was, that all necessary documents been produced before the learned Assessing Officer. 6. The matter was carried in further appeal before the learned Tribunal, and surprisingly, the Tribunal dismissed the appeal by adopting yet different reasoning, viz. that since the assessee had not challenged the assessment order, the claim of refund cannot be entertained, so as to indirectly challenge the assessment order, without filing statutory appeal, against the assessment order. It was also found, that in the case in hand, the order is appelable and no appeal having been filed, the claim of refund has no merit, and the appeal was dismissed. 7. We have heard learned counsel for the parties, and have gone through the relevant provisions of the Finance Act, 1994, enacting provisions for levy of service tax, so also the relevant provisions of Central Excise Act, as well. 8. At the outset, it may be observed, that under the scheme of things, starting from Section 73 onwards it is clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relief which we are inclined to grant is, only to the effect, that while setting aside the orders Annex. 2 and 3, we remit the matter back to the Commissioner (Appeals-II), Central Excise and Customs, Jaipur, to restore the appeal to its original number, and adjudicate the claim of the assessee afresh, in accordance with law, keeping in view the observations made above, and also keeping in view the order passed by the said Commissioner dated 30-9-2005, in the case of the assessee itself. The Commissioner is also directed to decide the appeal expeditiously. 12. The appeal is accordingly allowed. The orders of the Tribunal and the Commissioner are set aside and the matter is remanded as above." 8. We find from the above reproduced judgment of the Hon'ble High Court, that the point raised by ld. DR, is now squarely settled in favour of the assessee. In view of this, the Tribunal's decision relied upon by the ld. JDR will be of no consequence. 9. Accordingly, we are of the considered view that the findings reached by the ld. Commissioner (Appeals) in the impugned order are correct, proper and legal and does not require any intereference. Appeal filed by the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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