TMI Blog2010 (12) TMI 782X X X X Extracts X X X X X X X X Extracts X X X X ..... d 30-9-2005 has, at all been appealed against, nor has it otherwise been shown to be wrong. In that view of the matter, the reasonings given by the learned Commissioner, in the order Annex. 2, also cannot sustain - ST/575/2008 - 8/2011 - Dated:- 9-12-2010 - S/Shri M.V. Ravindran, B.S.V. Murthy, JJ. REPRESENTED BY : Shri M.M. Ravi Rajendran, JDR, for the Appellant. Shri G. Natarajan, Advocate, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. This appeal is filed by the Revenue against the Order-in- Appeal No. 38/2008 (H-II) S.Tax, dt. 12-8-2008. 2. The relevant facts that arise for consideration are that the respondents herein got themselves registered under the category of Site formation and clearance, excavation and earthmoving and demolition service and paid service tax under the said category for the period 16-6-2005 to 30-9-2006. The respondents were engaged in providing services of mining to their clients/principals. With introduction of separate service under the category of mining service w.e.f. 1-6-2007, the respondents were of the view that their service would fall under the new category and the service tax paid by them was not statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se which indicate that they were liable to be paid for every ton Iron ore which has been taken out of the mine. He would submit that for taking of Iron order from a mine, incidental work like levelling, site formation, clearances, excavation etc. are required to be done. He would submit that this Bench in the case of M. Ramakrishna Reddy v. CCE C, Tirupathi [2009 (13) S.T.R. 661 (Tri.- Bang.)] has clearly held that removal of overburdens and excavation of ore undertaken as per contract, would fall under the category of mining services and liable to be taxed under the head from 1-6-2007 only. He would also submit that the Hon ble High Court of Rajasthan in the case of Central Office Mewar Palaces Org. v. UOI [2008 (12) S.T.R. 545 (Raj.)] has clearly held that the self-assessment would not amount to assessment done by an officer and hence there is no restriction for claim of the refund of the duty so self-assessed. 5. We have considered the submissions made at length by both sides and perused the records. 6. The ld. Commissioner (Appeals) while setting aside the Order-in-Original has clearly recorded the following factual findings, after considering the contracts which were produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amakrishna Reddy (supra). 7. We now address to the submissions made by the ld. JDR as regards the refund of the amount paid by the assessee on self assessment. It is his submission that the assessee having self-assessed, the amount of service tax payable and having discharged the same with interest, cannot now turn around and claim that he has paid the service tax, wrongly. This argument put forth by the ld. JDR is untenable for more than one reason. First of all, it is an admitted fact that the amount paid by the assessee under the self-assessment as per the provisions of the Finance Act, 1994. When the respondents came to know that the activity undertaken by them under these contracts would fall under the mining activity which came into service tax net from 1-6-2007, the assessee was justified in filing the refund claim as the self-assessment cannot be considered as an assessment made by an officer under Section 73 against which an appeal or challenge lies. We find that the Hon ble High Court of Rajasthan in the case of Central Office Mewar Palaces Org. (supra) has clearly settled the law, which we may respectfully, reproduce :- This appeal has been filed by the assessee see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f non-taxable services, and that mere production of statement showing value of unit-wise taxable services and services, which are non-taxable services cannot be considered authentic/genuine document, for the purpose of granting refund. It was also found, that nowhere the evidence produced by the assessee establish, that the service tax collected by them has not been virtually passed on to their clients/customers, and thus, it was observed, that incidence of burden has been passed on to the clients/customers, apart from the fact that assessee has collected tax without authority of law for non-taxable services, and by merely raising credit notes, does not authorise the assessee to claim refund. Thus, the prayer for refund was rejected. 5. The appeal against this order was filed, which was dismissed by the Commissioner, by adopting an entirely different process of reasoning, viz. that all the services with respect to which the service tax was charged are included under the head Manpower Recruitment Agency and Security Services and that they are covered by the definition of Management Consultant . Thus it was found, that the services were taxable, and the appeal was dismissed. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee itself, for the subsequent period April 2000 to March 2002, wherein it has clearly been held, that all these services as cataloged in the said order are not chargeable to service tax. And consequently the proceedings initiated against the assessee, wherein the adjudicating authority had demanded tax, were set aside, and the proceedings were dropped. It is not shown, that this order dated 30-9-2005 has, at all been appealed against, nor has it otherwise been shown to be wrong. In that view of the matter, the reasonings given by the learned Commissioner, in the order Annex. 2, also cannot sustain. 10. Then remains the order Annex.1, which proceeds on the basis, as quoted above, while according to the learned counsel for the appellant, all relevant and necessary documents had been shown in original, and photostat copies were produced on record, but they have not been looked into. 11. In that view of the matter, the question as framed is required to be answered against the Revenue, and in favour of the assessee, but at the same time, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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