TMI Blog2017 (4) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... the activity of the Appellant and its agreement with M/s. NEPL was considered. Since in this case the Appellant has undertaken only the transportation activity and the services were rendered to M/s. NEPL which is a private Ltd. concern, we hold that the services are of transportation on which the Appellant is not liable to service tax being taxable under reverse charge mechanism. Thus, the Appellant is not liable to any service tax under the category of “Site formation and clearance, excavation and earthmoving and demolition” services. - Decided in favor of assessee. - ST/313/2012-Mum - Final Order No. A/93578/2016-WZB/STB and Misc. Order No. M/93579/2016/STB - Dated:- 31-10-2016 - Shri Ramesh Nair, Member (J) and C.J. Mathew, Membe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st mines. That in turn the part of work related only to transportation of overburden material was sub contracted to Appellant by M/s. Navjivan. He takes us through all the contracts to this effect, bills raised by the Appellant and statement dated 29-11-2008 of Shri Devender Singh and submits that the adjudicating authority did not examine the agreement which they had entered into with M/s. Navjivan. He submits that the transportation activity undertaken by them is thus not liable to service tax as the same is not Site Formation and Clearance, Excavation and Earthmoving and Demolition Service . He alternatively submits that being the individual service provider and not a transport agency he is not liable to service tax. That even if they a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices rendered by Appellant. (vii) Penalty cannot be imposed as no mala fide intention and suppression of facts. (viii) Penalty cannot be imposed simultaneously under Sections 76 and 78. 4. On the other hand, Shri. Vikram Kaushik, ld. Asstt. Commissioner (A.R.) appearing for the Revenue supports the impugned order and submits that the services rendered by the Appellant would fall under the category of Site formation and clearance, excavation and earthmoving and demolition service. He relies upon the judgment of Avtar Company v. CCE, Nagpur - 2015 (37) S.T.R. 781 (Tri.-Mumbai). He submits that from the show cause notice and the findings of the adjudicating authority it is clear that the service rendered by the Appellants are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly the transportation activity and the services were rendered to M/s. NEPL which is a private Ltd. concern, we hold that the services are of transportation on which the Appellant is not liable to service tax being taxable under reverse charge mechanism. Thus, the Appellant is not liable to any service tax under the category of Site formation and clearance, excavation and earthmoving and demolition services. The judgment of Tribunal relied upon by the ld. Departmental Representative is not applicable as the nature of services in said judgment was at all different whereas in this case the Appellant has rendered only transportation activity. 6. Thus without going into the other submissions of the Appellant we hold that being the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X
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