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TMI Blog2023 (6) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... CEI F No. 206/KZU/KOL/ST/06/1757 dated 14.03.2007, demanding service tax for the period 16.08.2002 to 31.10.2006. The demand of service tax was made under the following heads:- Sl. No Items of Services Commencement of levy Amount of ST* Edu Cess (Rs.) 1. Cargo Handing Service [Section 65 (23)] 16.08.2002 18,32,45,744/- 2. Business Auxiliary Service [Section 65(19)(v)] 01.07.2003 2,03,98,752/- 3. Site Formation and Clearance, excavation and Earth Moving and Demolition services [Section 65(97a)] 16.06.2005 12,73,55,773/- Total demand of Serviced Tax including Edu. Cess. 33,10,00,270/- 3. The Notice was adjudicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .) Associated Shop Stone Distributing Co. Pvt. Ltd., Vs. Commissioner of Service Tax, Ahmedabad. 3. 2019 (24) GSTL 602 (Tri.-Hyd) M. Ramakrishna Reddy Vs. Commissioner of CUS, C.Ex. & ST, Tirupati. 4. 2019 (25) GSTL 43 (Tri.-Kolkata) Tuli Construction Co. Vs. Commr. Of C.Ex, Cus, & ST, BBSR-II. 5. 2019 (24) GSTL 565 (Tri.-Kolkata) Ripley & Company Ltd., Vs. Commissioner of CEX & ST, Jamshedpur. 6. 2022 (67) GSTL 324 (Call) Commissioner of Service Tax Vs. Naresh Kumar & Company Pvt. Ltd., 7. 2019 (31) GSTL 487 (Tri.- Kolkata). Calcutta Industrial Supply Corpn. Vs. Commissioner of C. Ex., Cus & ST, BBSR. 8. 2008 (9) GSTL 531 (Tri.-Kolkata) Sainik Mining & Allied Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te." 7. The Appellant stated that in the present case the contracts were not restricted to site formation, Cargo Handling and Business Auxiliary Service, but also included a host of other activities associated with mining activities viz. removal of over burden, extraction and segregation of coal/ores. Thus, the contracts, as a whole, has to be considered and not in parts and in a disjointed manner. 8. Regarding the limitation issue, the Appellant stated that service tax in respect of mining activities was levied for the first time with effect from 01.06.2007. Accordingly, they did not apply for registration in respect of mining services before 01.06.2007. They were under the bonafide belief that registration need not be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be sustained." (ii) 2022 (67) GSTL 324 (Cal) Commissioner of Service Tax, Vs. Naresh Kumar & Company Pvt. Ltd, "14. The second issue was as to whether the extended period of limitation could have been invoked. If the issue is answered in favour of the writ petitioner, there may not be a necessity to go into the third issue. As rightly pointed out by the Learned Writ Court, the proviso to Section 73(1) of the Act can be invoked only when there is an allegation of fraud or collusion or wilful mis-statement or suppression of facts or contravention of the provisions of the Act or the Rules with intent to evade payment of service tax. Therefore, the show cause notice should clearly indicate the wilful mis-statement or suppression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to disclose the turnover of exempted goods. Even assuming it was, the appellant could not be held guilty of suppression when the law itself was not certain." VI. Having regard to the above, it is clear that major portion of the demand is patently time-barred. 9. Regarding penalty imposed, the Appellant contended that the instant issue being a predominantly legal issue, extended period of limitation under proviso to Section 73(1) of the Act and penal provisions under Section 78 ibid would not get attracted. They cited the decision of the Hon'ble Madhya Pradesh High Court, in the case of S.N. Sunderson (Minerals) Ltd., Vs. Suptd. (Preventive), C. Ex., Indore reported in 1995 (75) ELT 273 (M.P.), wherein it has been held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity has been made taxable by legislation under the Finance Act, 2007 (w.e.f. 1.06.2007). Prior to this date, such activities, being part of mining operations itself are not subjected to service tax. Therefore, no service tax is leviable on such activities prior to the said date." 13. The Appellant cited a plethora of decisions of the Hon'ble Supreme Court, High courts and Tribunals, which are listed in paras 4 and 5 above, in support of their claim that 'mining services' were not leviable to service tax prior to 01/06/2007. We find that the decisions cited by the Appellant are squarely applicable in this case. In the case of CCE Vs. Larsen & Toubro Ltd., the Hon'ble Supreme Court has held that when a particular levy was i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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