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2016 (9) TMI 489 - CESTAT CHANDIGARH

2016 (9) TMI 489 - CESTAT CHANDIGARH - TMI - Demand of service tax from sub-contractor - Site Formation Service and Mining Services since 2007-2008 - hiring of equipment for excavation, loading of Coal/OB at Pit No. of Dongamouha Open Case Coal mines of M/s Jindal Steel Power Projects Ltd. (JSPL) and transporting the same to JSPLís crushing plant/OB Dump within distance of 3 km from the edge of the quarry and unloading of coal in the JSPLís hopper as would be directed by GSA - Held that:- by rel .....

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venue. In that circumstances, we hold that the payment of main contractor on behalf of the appellant shall be treated as payment made by the appellant. - We further hold that in the light of the Section 97 of the Finance Act, 2012, the appellant is not liable to pay service tax on the activity of maintenance & repair roads, therefore, demand on this account is also set aside. The matter is remanded back to the adjudicated authority for verification purposes whether the appellant paid service .....

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tax of ₹ 1,39,22,109/- alongwith interest and various penalties imposed on the Finance Act, 1994 for the period of 2006 to 2012. 2. The fact of the case are that the appellant has entered into a sub-contract with M/s G.S Atwal (GSA) for overburden removal/coal excavation, including drilling, blasting, loading, transportation and dozing in the dumping area, or unloading coal into crushing hopper at a distance of not more than 3 km from the edge of the query by using mechanical equipment and .....

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nd Mining Services since 2007-2008 without paying service tax. Accordingly, proceedings were initiated by issue summons and asking records from the appellant. The appellant explained the reasons for difference in figures of balance sheet & figures of ST-3 returns that as a sub-contractor, they provided transportation services to M/s GSA and Mining Services to M/s JSPL and paying service tax on mining service only which is reflected in their ST-3 returns and no service tax has been paid on tr .....

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d, therefore, for the prior period they liable to pay service tax. In this set of facts, the show cause notice was issued to the appellant to demand service tax from the appellant along with interest and to impose various penalties on the appellant. The matter was adjudicated demand of service was confirmed along with interest and various penalties are also imposed. Aggrieved from the said order, the appellant is before us. 3. Sh. Jagmohan Bansal appeared on behalf of the appellant and submits t .....

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ed on the decision of M/s Hindustan Coca Cola Beverage P. Ltd reported in 2007 AIR (SC) 2930. He further submitted that the maintenance & repair of road have been exempted from service tax as per section 97 of the Finance Act, 2012 w.e.f. from 16.06.2005, therefore, they are not liable to pay service tax for maintenance & repair roads. He further submitted that for the remaining liability of service tax, the appellant has already paid service tax but the same has not been examined/ verif .....

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d considered the submissions. 6. On careful consideration of the submissions made by both the sides and peruse the records, we find that the appellant is engaged in the activity of site formation service and mining service. We also find that the appellant is liable to pay service tax but on the activity of appellant, the main contractor has paid service on behalf of the appellant. We further find that the issue whether payment made by the main contractor can be considered payment made by the mai .....

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anting fair opportunity of hearing to the sub-brokers. All the appeals are allowed by way of remand. 7. Further, we find that in the case of Hindustan Coca cola Beverage P. Ltd. (Supra) in the case of income tax wherein the office incharge was required to deduct TDS from the payments made to the deductee/assessee and the deductor failed to deduct the TDS but the deductee/assessee paid the income tax. In that circumstances, the Hon ble Apex Court has observes as under:- 10. Be that as it may, the .....

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