Tax Management India. Com
                        Law and Practice: A Digital eBook ...

Category of Documents

TMI - Tax Management India. Com
Case Laws Acts Notifications Circulars Classification Forms Manuals SMS News Articles
Highlights
D. Forum
What's New

Share:      

        Home        
 

TMI Blog

Home List
← Previous Next →

2018 (7) TMI 98

her the service classifiable as site preparation and clearance service or mining activity? - Held that:- It is apparent that appellant was already awarded work of mining activity i.e. of mining lignite from the mines vide an agreement of 27.01.2003. It is during this activity that the appellant noticed a big water aquifer. Though water aquifers are often found in the mines and need simultaneous cleaning while mining but as per appellant, which is not been denied or disputed by the Department, the impugned water aquifer was much bigger water body found within the mine having much large volume of water requiring much more amount of investment to depressurise the same - the sole intention of the subsequent agreement is not the site cleara .....

X X X X X X X

Full Text of the Document

X X X X X X X

at:- There is no positive act is alleged by the Department which may amount to committing suppression of facts or which may reflect any malafide on part of the appellant with an intention of evading tax. The question of imposition of penalty does not at all arise - penalty not warranted. - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. ST/52015/2014 [DB], Service Tax Appeal No. ST/52589/2014 [DB] - Final Order No. 52373-52374/2018 - 2-7-2018 - HON BLE MR. V.PADMANABHAN, MEMBER (TECHNICAL) And HON BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) For the Assesse : Mr. S.K. Pahwa, Advocate Mr. Rohan Pahwa, Advocate Mr. Kuldeep Singh, Advocate For the Department : Mr. Sanjay Jain, D.R. ORDER Per : Rachna Gupta This Order d .....

X X X X X X X

Full Text of the Document

X X X X X X X

challenge. The Adjudicating Authority has confirmed the demand of ₹ 23,40,304/- alongwith interest and the penalties as mentioned in the Order itself. 3. We have heard Mr. S.K. Pahwa, Advocate representative of the assesse and Mr. Sanjay Jain, D.R., representative of the Department. 4. It is submitted on behalf of the appellants that they entered into an agreement with the State Government of Rajasthan (RSMML) for mining lignite in the mines of Mata Sukh and Kasua Village in the year 2003. It is during the said mining activity that a water aquifer was noticed having much greater volume of water than the one usually seen in the area to be mined and are often cleared by the contracting party itself. It is impressed upon that keeping in .....

X X X X X X X

Full Text of the Document

X X X X X X X

of site clearance and the appellant was liable to discharge his duty as has been calculated by the impugned Show Cause Notice. The Order under challenge needs to be upheld to that extent. However, the Adjudicating Authority has committed an error while reducing the said levy. The Appeal is prayed to be allowed as far as the impugned order has confirmed the impugned activity as site clearances however, it is liable to be rejected as far as reduction in levy has been done by the Adjudicating Authority. 6. After hearing both the parties, we are of the considered view as follows: While trying to analyse the submission of the appellant about having a contract with him with the State Government of Rajasthan to conduct mining in Mata Sukh Mines w .....

X X X X X X X

Full Text of the Document

X X X X X X X

tion 65(97a) which is taxable under Section 65 (105) (zzza). Section 65 (97a) site formation and clearance, excavation and earth moving and demolition includes: (i) drilling, boring and core extraction services for construction , geophysical, geological or similar purposes; or (ii) soil stabilization; or (iii) horizontal drilling for the passage of cabbies or drain pipes; or (iv) land reclamation work; or (v) contaminated top soil stripping work; or (vi) demolition and wrecking or building, structure or road, but does not include such services provided in relation to agriculture, irrigation , watershed development and drilling, digging, repairing, renovating or restoring of water sources or water bodies; Section 65 (105) (zzza) to any perso .....

X X X X X X X

Full Text of the Document

X X X X X X X

tion 65(97a) but is the part of the mining activity itself and that the same was entered into with the sole objective of justifying the financial burden upon the appellant. 10. In the light of the above discussion, we are of the confirm opinion that the activity carried out by the appellant was the mining activity which has been identified as taxable activity only beyond 01.06.2007. Hence, the demand for the period prior the said date is absolutely not sustainable. Resultantly, we set aside the same. Reliance is also placed on the Circular No. 232/2/2006-E 1-4 dated 12.11.2007 which says that activities as that of excavation, drilling, removal of overburdens, etc. are the essential integral processes and are the part of mining operations an .....

X X X X X X X

Full Text of the Document

X X X X X X X

suffer infirmity and is accordingly, set aside. 12. With respect to the penalties imposed, it is held that since the mining activity was never in tax net prior 01.06.2007, question of suppression of facts for not discharging the liability on the mining activity prior 01.06.2007 does not at all arise. The subsequent period as per Show Cause Notice is within the first year of the activity made taxable. The benefit of non awareness can readily be extended to the appellant. In addition, there is no positive act is alleged by the Department which may amount to committing suppression of facts or which may reflect any malafide on part of the appellant with an intention of evading tax. The question of imposition of penalty does not at all arise. I .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →

 

 

|| Home || About us || Feedback || Contact us || Disclaimer || Terms of Use || Privacy Policy || Database || Members || Refer Us ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.
|| Blog || Site Map - Recent || Site Map ||