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TMI Blog2023 (9) TMI 568X X X X Extracts X X X X X X X X Extracts X X X X ..... for exposure of coal in all the seams up to In bottom at Basundhara (West) OCP of Basundhara area" 3. The Appellant states that the above said work undertaken by them pertains to 'Mining' activity, which was brought within the ambit of service tax, vide Section 65(105)(zzzy), only w.e.f.01.06.2007. The department was of the view that the works under taken by the Appellant are 'Site Preparation Services' as defined under Section 65(97a), and hence liable to service tax w.e.f.16.06.2005. As the Appellant has not paid service tax under the category of 'Site Preparation service' for the above said works. A Show Cause Notice dated 24.08.2007 was issued to the Appellant demanding service tax of Rs. 65,60,796/- along with interest and penalty. The said Notice was adjudicated by the Commissioner vide Order-in-Original dated 08.02.2008, wherein the demand of service tax raised in the Notice was confirmed along with interest. Penalty equal to the service tax confirmed was also imposed under Section 78 of the Finance Act, 1994. Aggrieved against the impugned order, the Appellant has filed the present appeal. 3. In their grounds of appeal, the Appellant stated that they have carried out th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a verb means "to dig into for ore or metal". "Mining" according to the said dictionary means "the process or business of working mines". Section 65(97a)(i) when it refers to drilling, boring and core extraction services for "geophysical, geological or similar purposes" covers such activities which have for their object scientific study or investigation of the physical structure and substance of the earth or geological investigation using methods of physics. In the instant case the work done by them was not for the purpose of any scientific study or investigation and hence it would not fall within the ambit of clause (i) of sub-section (97a) of section 65 of the Act. The work done by them in terms of the Work Order dated 31.03.2006 was for exposure of coal in all seams, which was clearly work done in relation to mining of minerals. Exposure of coal seams cannot be anything but mining. 5. In the case of Tarakeshwar Sio Thakur Jiu v. Bar Dass Dey& Co., reported in 1979 (3) SCR 18 it was held that the expressions "mining operations" and "winning of mineral" are very wide and will include every activity by which the mineral is extracted or obtained from the earth irrespective of whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand severely restricted in its meaning and coverage of sections 65(97a) and 65(105)(zzza) would stand hugely expanded if the said circular dated November 12, 2007 is given effect. They submitted that a Circular cannot have such an effect on statutory provisions. It is also well settled that the Circulars are not binding upon quasi-judicial authorities including this Tribunal. 9. In Hansraj & Sons v. State of Jammu & Kashmir, reported in (2002) 6 SCC 227 it was held by the Hon'ble Supreme Court that a charging section has to be construed strictly. No one can be taxed by implication. If a person has not been brought within the ambit of the charging section by clear words, he cannot be taxed at all. Upon a strict construction the activities undertaken by the appellant for exposure of coal seams in terms of the Work Order dated 31.03.2006 cannot fall within the ambit of sub-sections (97a) and (105)(zzza) of section 65 of the Finance Act, 1994. The work done by the appellant squarely falls under section 65(105)(zzzy) of the Finance Act, 1994 with effect from 01.06.2007. 10. The Appellant further stated that the decision in the case of Ramesh Construction Company v. Commissioner of Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d both sides and perused the appeal records. 13. The dispute involved in the instant appeal is as to whether the aforesaid activity undertaken by the Appellant would fall within the purview of section 65(105)(zzza) read with section 65(97a) of the Finance Act, 1994 ("the Act") as "site formation and clearance, excavation and earth moving and demolition" service or not. It is the Appellant's case that the works undertaken by them were "in relation to mining of mineral" which service was brought within the purview of taxation by section 65(105)(zzzy) only with effect from June 1, 2007. Hence, no service tax was payable for the said works prior to 01.06.2007. 14. We observe that the service of "site formation and clearance, excavation and earth moving and demolition" was brought under the service tax net by the Finance Act, 2005 with effect from June 16, 2005 by inserting section 65(97a) and section 65(105)(zzza) in the Act. Subsection (97a)(i) of section 65 of the Act defines "site formation and clearance, excavation and earthmoving and demolition" to include drilling, boring and core extraction services for construction, geophysical, geological or similar purposes. The works under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Ramesh Construction Company v. Commissioner of Central Excise, Raipur, reported in 2017 (52) STR 291.The relevant portion of the decision is reproduced below: "3. The ld. AR submitted that both the lower authorities examined the nature of contract and the legal provisions applicable to the service rendered by the appellant. The tax entry for site formation and clearance service only indicates illustratively certain services. The nature of service as available from the contract will clearly show that the appellant are engaged in site formation and clearance which involves various connected work like drilling, blasting, earth moving, basically to make the site ready for coal mining. The appellant themselves are not involved in any mining operation of coal or any other mineral. As such he supported the findings of the lower authorities and further relied on the Board's Clarification dated 12-11-2007 which covers the situation in the present case. 4. We have heard both the sides and perused the appeal records. 5. The nature of service rendered by the appellant is not in dispute. We have perused the terms of the contract and it is clear that the appellants are involv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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