9911796707
TMI Blog2014 (9) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... amoh, for loading and transportation of 3,00,000 M.T. of usable limestone per year from the screening plant at Satpura mines of M/s. Diamond Cement to the crusher/stock pile at the factory premises of M/s. Diamond Cement at Narsinghgarh. In terms of Clause 2 of the contract dated 26-10-2006 the appellant was to be paid @ Rs. 53.55 per M.T. of the limestone delivered at the factory premises. However, the appellant was to receive diesel @ Rs. 0.09 litre per M.T. free of charge from M/s. Diamond Cement. The Department was of the view that the appellant's activity in terms of this contract with M/s. Diamond Cement is "site formation and clearances, excavation and earth moving or the demolition service" defined under Section 65(97a) of the Finan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Original dated 19-11-2012 by which the above-mentioned Service Tax demand was confirmed against the appellant along with interest and besides this, penalty of equal amount was imposed on them under Section 78 along with penalty of Rs. 10,000/- on the appellant under Section 77 ibid. In course of hearing before the Commissioner, the appellant's plea was that while the service of transportation of the mined lime stone from the captive mines to the appellant's factory is the Goods Transport Agency service for which the Service Tax liability is of the service recipient and that the service of providing various equipment - excavators, bulldozers, drills, pay loaders, dump trucks and allied machinery for removal of overburden on mining of limesto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not involved in removal of overburden or mining of limestone and their activity is confirmed only to supply of machinery, that this activity of the appellant by no stretch of imagination can be called site formation and clearance service covered by Section 65(105)(zzza) read with Section 65(97a), or mining service covered by Section 65(105)(zzzy), that the impugned order demanding Service Tax on the hiring charges is, therefore, without any basis, that in any case in view of Tribunal's judgment in the case of Bhayana Builders Pvt. Ltd. v. CCE, New Delhi reported in 2013 (32) S.T.R. 49 (Tri.-Del.), the value of diesel supplied free of charge cannot be included in the assessable value of the service, that in any case the Service Tax demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and would be covered by the GTA service for which the liability to pay the Service Tax would be of the service recipient. Prima facie, we are of the view that this activity of the appellant is GTA service and is not at all covered by the service of site formation and clearance covered under Section 65(105)(zzza) read with Section 65(97a) and therefore the Service Tax demand on the amount charged by the appellant for this service would not be sustainable. 8. The other two contracts of the appellant with M/s. Diamond Cement are for supply of various mining machinery excavators, bulldozers, drilling machines, dump trucks, screening plant and allied machinery in adequate numbers on hire basis which is to be used by M/s. Diamond Ceme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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