TMI Blog2018 (6) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... a necessary pre-requisite for extraction from mines and section 65 (97a) of Finance Act, 1994 is not a restricted definition of this activity. Water sprinkling is an activity that is required to prevent the dispersal of dust not just at the mines but in the surrounding area. It cannot, therefore, be held, as the adjudicating authority has, that this, being essential for mining operation, is to be treated as provision of mining service or site formation and clearance service. The supply of fuel/lubricant has been sought to be taxed in the impugned order for the latter period merely because the supply was to a mining location and for the earlier period by association of site clearance and formation service with the subsequent tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transport raw, as well as reject, ores to designated places at the mine and to provide fuel and lubricants for the vehicles. Appellant claims that these were undertaken as pure agent of the principal or were exempt from tax and that they had discharged tax liability of ₹ 3.04 crores during the period of dispute on the consideration received for taxable services rendered by them. During the investigation, a further amount of ₹ 1,07,73,961 was deposited on 5th April 2011 as tax and ₹ 26,72,708 as interest on 6th April 2011. 3. The demand that was confirmed in the impugned order pertains entirely to payments received from M/s Hardesh Ore Ltd between 1st April 2006 and 31st March 2011 and on that portion of mining incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng service or goods transport by road service , as the case may be, and that notification no. 34/2004-ST dated 3rd December 2004 exempts transportation charges below ₹ 750 per consignment from tax. Learned Counsel for appellant relies on the circular dated 12th November 2007 and on the decision of the Tribunal in Kanak Khanz Udyog v. Commissioner of Central Excise, Jaipur-II [2017 (52) STR 46 (Tri-Del)]. 5. Learned Authorized Representative drew attention to the scope of section 65 (97a) of Finance Act, 1994 and the inclusive nature of the definition therein to contend that the very same activities were continued within mining services which was incorporated to provide a sharpen appreciation of the legislative intent and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd clearance is a necessary pre-requisite for extraction from mines and section 65 (97a) of Finance Act, 1994 is not a restricted definition of this activity. However, the principle of ejusdem generis impedes the inclusion of some mining related activities within site formation and clearing service ; such service as are necessary for bringing the yield from the mine to commercial use alone would qualify for inclusion prior to 1st June 2007. This is where the impugned order has faulted. The adjudicating authority has somehow managed to insinuate haulage of ores among the list of activities spelt out in the clarification. This is patently incorrect. The later circular of the Central Board of Excise Customs dated 28th February 2007 makes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g whether any part of the income is generated from activities that are outside the scope of taxation in section 65 (105) of Finance Act, 1994. Taxability is not determined by section 67 of Finance Act, 1994 but by coverage in section 65. Without examining the latter, an omnibus determination from the measure for value for taxation is not valid in law. Supply of goods is a trading activity and not a service acknowledged for taxation in Finance Act, 1994. There is no allegation that fuel and lubricant are inputs of the appellant for providing taxable service; if such had been so, their claim of exclusion could have been denied. Consequently, the income from supply of fuel/lubricants are beyond the scope of taxability. 9. Likewise providing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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