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The Commissioner of Central Excise, Salem Versus M/s. Thriveni Earth Movers Pvt. Ltd., Salem and others

Nature of service - Whether every service rendered in mining area would have to be classified under "Mining Service" or it has to be classified according to its scope and nature of the work? - Whether the service as defined in the scope of the contract could be more appropriately classifiable under "Cargo Handling Services"? - Whether the Tribunal was right in holding that the limestone and rejects are not goods? - Held that:- while this Court is not inclined to deal with the matter, while dispo .....

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mar JUDGMENT (DELIVERED BY R.SUDHAKAR, J.) Aggrieved by the order of the Tribunal in allowing the appeal filed by the Revenue, the appellant/assessee is before this Court by filing the present appeal. Vide order dated 22.01.10, while admitting the appeal, this Court framed the following substantial questions of law for consideration :- "1) Whether every service rendered in mining area would have to be classified under "Mining Service" or it has to be classified according to its sc .....

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the Department, the said activities are covered under the category of "Cargo Handling Services" under sub-clause (zr) of Clause 105 of Section 65 of the Finance Act, 1994 and, hence, liable for service tax. Though the assessee is registered as a provider of service under the category of mining of mineral, oil and gas, since the service tax was not paid, a show cause notice was issued to the assessee by the Department proposing to recover service tax on the activity of loading and trans .....

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he Tribunal. 3. The Tribunal, on consideration of the entire facts on record and relying upon various decisions, held that the movement of limestone and rejects in the mining area undertaken by the assessee are covered by entry 'mining of mineral, oil, gas' and that the said activity cannot be taxed under 'cargo handling service' and, accordingly, allowed the appeal. The present appeal is directed against the said order by the appellant/Revenue. 4. We have heard the learned Stand .....

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f excise or value of goods for purposes of assessment would not lie before this Court. He placed strong reliance on the decision of the Supreme Court in Navin Chemicals Manufacturing and Trading Co. Ltd. - Vs - Collector of Customs (1993 (68) ELT 3 (SC)), wherein it is held as under:- 11. It will be seen that sub-section (5) uses the said expression determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment and the Explanation ther .....

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r. Although this Explanation expressly confines the definition of the said expression to sub-section (5) of Section 129-D, it is proper that the said expression used in the other parts of the said Act should be interpreted similarly. The statutory definition accords with the meaning we have given to the said expression above. Questions relating to the rate of duty and to the value of goods for purposes of assessment are questions that squarely fall within the meaning of the said expression. A di .....

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s application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. 12. This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT: does the question that requires determination have a direct and prox .....

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ot being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (emphasis supplied) 7. The view expressed by the Supreme Court in Navin Chemicals case (supra) has been followed by the Gujarat High Court in the case of Commissioner of Central Excise v. JBF Industries Ltd. (2011 (264) ELT .....

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