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TMI Blog2008 (10) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... e passing a common order. 2. Shri C. Natarajan the learned Advocate appeared on behalf of the appellants and Ms. Sudha Koka, the learned SDR, appeared for the Revenue. 3. We heard both sides. 4. The issue involved in the present appeals is whether the appellant would be liable for Service Tax during the relevant period under the category of "site formation and clearance, excavation and earthmoving and demolition services." The appellant has been awarded with the work of mining Barytes Ore from the depth ranging from 42 to 100 Mtrs, from the surface by Andhra Pradesh Mineral Development Corporation Ltd. (APMDCL). APMDCL is executing Management Barytes Projects located at Mangampet, Kadappa District. The lease hold of the Corporation is 162.5 Hec at Mangampet with an estimated reserve of 74 Million Tones of Barytes Ore. 5. Revenue proceeded against the appellants on the ground that they had undertaken the work of excavation and removal of overburden and Barytes Ore, loading, transportation, unloading and leveling at APMDCL Project site, Kadapa. Our attention was invited to the definition of "site formation and clearance, excavation and earth moving and demolition services" as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Barytes Ore from a depth ranging from 40 to 100 Mtrs. from the surface. (c) The word 'mining operation' has not been defined in the Act, may be for the simple reason that it is not the intention of the Government to levy tax on the operations of mining during the relevant period. As per Clause (d) of Section 3 of The Mines and Minerals (Development & Regulation) Act, 1957 "mining operation" means any operation undertaken for the purpose of winning any mineral" and that is what precisely the Contractor is doing for and on behalf of the APMDCL and not doing any reconnaissance operations for the purpose of preliminary prospecting or any other activity for making the land suitable for mining. (d) In fact, only with effect from 2007 "Mining Services" was brought under the net of service tax vide Clause (zzzy) of Sub-section 105 of Section 65 of Chapter V of the Finance Act, 1994. The said entry provides for service tax on the service provided or to be provided to any person by any other person in relation to mining or mineral, oil or gas. This clearly identifies mining for the purpose of taxation and it is applicable from a date to be notified by the Government. The Tribunal Chennai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cavation of excavation/removal of overburden itself renders the services undertaken by the appellants squarely fit into the definition of the service and non-inclusion of the word "mining" does not exempt the appellants' services from falling within the definition. The conclusion of the adjudicating Authority is based on the fact that the appellants are undertaking the work of excavation and removal of overburden and these activities are very much a part of the relevant definition. It is not the contention of the Adjudicating Authority that the appellants have been undertaking site formation services alone. The Mining activity undertaken by the appellants very much involves work of excavation/removal of overburden and hence fits into the definition of the taxable service of site formation. 8. The proceedings against the appellants were initiated much before the mining services were made taxable. The fact that mining services were made taxable later would not mean that the activities undertaken by the appellant were not liable to service tax for a prior period. 9. As the appellants had not taken registration within one month from the date of imposition of service tax on site forma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine facilitates movement of heavy vehicles up to the level of 120 Mtrs. where the present operations are going on. The Corporation is undertaking the job of dewatering from the mines and the Tenderer's responsibility with regard to dewatering is only providing men and machinery required for shifting of the pumps from level to level depending on the rise and decrease of water levels. The above information is general in nature and given for the information of the tenderers. However, the tenderers may have to visit the Project site and study all the aspects and submit the bid. Name/Scope of the work: Excavation and removal of over burden and barytes Ore (ROM), loading, transportation, unloading, and leveling at Mangampet Barytes Mine Mangampet village, near Rly, Kodur, Kadapa Dist. A. P. OVERBURDEN; (OB) Excavation (by suitable heavy earth moving machinery) of OB includes blast hole drilling, blasting, loading and transportation by dumpers/tippers to the dumping plots specified/agreed to by the corporation from time to time, unloading, leveling and allied works as per tender. The Corporation is having dumping yard within a distance of 5 Km. (one way) The height of the dumping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case is prior to 1-6-2007. It cannot be said that the entire service rendered by the appellant comes under the category of site formation. If that were so, one cannot say that it also falls under "Mining Services." In any case, Section 65A (2) of Chapter V of the Finance Act, 1994 reads as follows: "When for any reason, a taxable service is, prima facie, classifiable under two or more sub-clauses of clause (105) of Section 65, classification shall be effected as follows: (a) the sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description; (b) composite services consisting of a combination of different services which cannot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essential character, in so far as this criterion is applicable; (c) when a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under the sub-clause which occurs first among the sub-clauses which equally merit consideration" 10.2 If the above provision is applied, the services rendered would amount to on ..... 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