TMI Blog2023 (6) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice tax leviable on mining activities prior to 01.06.2007. However, the adjudicating authority failed to appreciate the clarification and went ahead to confirm the demand made in the Notice. In the case of CCE Vs. Larsen Toubro Ltd. [ 2015 (8) TMI 749 - SUPREME COURT ], the Hon ble Supreme Court has held that when a particular levy was introduced for certain activities with effect from a particular date, it is to be construed that such activities were not liable to service tax prior to that date. In the present case mining services were brought under service tax only with effect from 01/06/2017. Hence, for the period prior to 01/06/2007, there was no liability of service tax on mining services . The Board has issued a Circular in F. No. 232/2/2006 Cx.4 dated 12.11.2007 clarifying the issue. The Circular cited above categorically clarifies that mining services were not leviable to service tax prior to 01/06/2007. Accordingly the artificial bifurcation of the services rendered by the Appellant into Cargo Handling Service, Site Formation Service and Business Auxiliary Service and demanding service tax in the impugned order is not sustainable and hence it is liable to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mounting to Rs. 33,10,00,270/- was confirmed under the three different heads as demanded in the Show Cause Notice. Aggrieved against the impugned order, the Appellant is before us. 4. In their submissions, the Appellant stated that it is a well settled position in law that when a particular levy was introduced for certain activities with effect from a particular date, it evident that such activities were not taxable to service tax prior to that date. In the present case mining services were brought under service tax with effect from 01/06/2017. Hence, for the period prior to 01/06/2007 the said activities cannot be bifurcated under different heads for the purpose of demanding service tax. In support of their contention, they relied on the decision of the Hon ble Supreme Court in the following cases:- Sl. No. CITATIONS CAUSE TITLES 1 2015 (39) STR 913 (SC) CCE C. Vs. Larsen Toubro Ltd., 2. 2011 (21) S.T.R. 3 (S.C.) UOI Vs. Indian National Ship-owners Assn. 5. The appellant further relied on the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f C. Ex. Cus ST, BBSR-II. 6. The Appellant contended that the Ld. Commissioner has erred in not following the Board CBEC Circular F. No. 232/2/2006-Cx.4 dated 12.11.2007 which categorically states that no service tax on mining activities is leviable before 01.06.2007. The relevant para 4 of the Circular is reproduced below: 4 Coal cutting or mineral extraction and lifting them up to the pithead :- These activities are essential integral processes and are part of mining operations. As stated earlier, mining 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 of facts or fraud or collusion as done by the assessee with an intention to evade payment of tax. On a careful reading of the show cause notice, it is evidently clear that there is absolutely no whisper of any allegation of wilful mis-statement or suppression of facts or fraud or collusion as committed by the respondent assessee with an intention to evade payment of service tax. In the absence of such factual finding, the extended period could not have been invoked. [Emphasized] (iii) 1995 (78) E.L.T. 401 (SC), Pushpam Pharmaceuticals Company Vs. CCE, Bombay. The Hon ble Supreme Court in this case at para 3 has held as under:- 3. Law about excisability of exempted goods was settled by this Court in Wallace Flour Mills Co. Ltd. v. Collector of Central Excise, Bombay, Division III - 1989 (44) E.L.T. 598 (SC) = (1989) 4 SCC 592. Till then conflicting decisions were rendered by different High Courts and Tribunal and it was not settled whether the turnove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clarification and went ahead to confirm the demand made in the Notice. The relevant para 4 of the Circular is reproduced below: 4 Coal cutting or mineral extraction and lifting them up to the pithead :- These activities are essential integral processes and are part of mining operations. As stated earlier, mining 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 introduced for certain activities with effect from a particular date, it is to be construed that such activities were not liable ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
