TMI Blog2012 (9) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants have accepted their tax liability in respect of 'cargo handling service' and have deposited the entire tax liability - against assessee. Penalty on non-payment of tax on 'cargo handling services' - Held that:- As said services were being provided by the appellants as an excelsior to the impugned services of benefication of coal there could be a doubt on the part of the appellants that service tax is not payable on the same - benefit of Section 80 can be extended to set aside the penalty imposed on the appellants - in favour of assessee. - Service Tax Appeal No.461 of 2007 - ST/A/521/12-CUS - Dated:- 5-7-2012 - Archana Wadhwa, Mathew John, JJ. For Appellant: Shri S K Pahwa, Adv. For Respondent: Shri R K Gupta, AR P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T-CLI receives raw coal in its aforesaid coal washery on behalf of different linked consumers of South Eastern Coalfield Ltd. (SECL), Gevra Area of Distt.-Korba (C.G.), having size ranging from 1 to plus 250 mm. Then, it sizes the raw coal upto maximum 50 mm with the help of crusher. The crushed raw coal is then conveyed to the stacking tube and then it is drawn from the staking tube through variable speed vibrator-feeders and conveyed to the Coal Preparation Plant (CPP). In CPP, the raw crushed coal is dry screened at 13 mm size and (-) 13 mm sized coal is by passed as clean coal (optional depending on wash ability characteristics). (+) 13 mm coal is again wet screened at 2 mm size so as to de-slime it of any fines which might be sticking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The Commissioner has confirmed the above activity to be falling under the category of 'business auxiliary services' as the appellant has been producing / processing the coal on behalf of their clients and as the said activity does not amount to manufacturing activity. 5. At this stage, we find that the issue stands decided by the Tribunal in the case of Aryan Energy P. Ltd. reported in 2009(13) STR 42(Tri.) . It was held that the benefication/washing of raw coal is the activity of mining which was introduced for the purpose of service tax w.e.f. 01.06.07. As such it was held that prior to the said period, no service tax was leviable on benefication activity by treating the same as 'business auxiliary services'. For better appreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re our conclusion is that for the relevant period the activity carried out by the appellant would not be liable to service tax as mining service." 6. In as much as the identical issue stands decided by the Tribunal in the above referred judgement, by following the same we hold that the activity of benefication of coal is a part of the mining which came into existence w.e.f. 01.06.07. The period involved in the present appeal is upto 31.03.06, as such we hold that no service tax was leviable on above activity prior to 01.06.07. Accordingly, we set aside the confirmation of service tax on the said count along with setting aside of penalties on the above counts. 7. We further find that an amount of Rs. 17,14,573/- stands confirmed against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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