TMI Blog2023 (11) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... mining service which was included in the service tax net vide Finance Act, 2004 with effect from 01.06.2007 under the service category of Mining Service. The appellant have duly discharged their service tax liability after 01.06.2007 under the service category of Mining Service. Thus the impugned order-in-original is without any merit. Reliance can be placed in the case of ASSOCIATED SOAP STONE DISTRIBUTING COMPANY PVT LTD VERSUS C.S.T. -SERVICE TAX AHMEDABAD [ 2022 (3) TMI 511 - CESTAT AHMEDABAD] where it was held that The appellant have provided the Mining Service which was not liable to service tax during the relevant period in this case. Appeal allowed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Jigar Shah Shri Amber Kumrawat, Advocates for the Appellant Shri Prabhat K. Rameshwaram, Addl. Commissioner for the Respondent ORDER The facts in brief are that the appellant is a joint venture firm engaged in providing Mining Service. The appellant is registered with service tax department under the category of Mining Service. The appellant had entered into a contract on 26.07.2003 with Gujarat Industries P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be appropriated against the service tax liability. (ii) The amount of Rs. 49,54,78,789/- received by them from M/s GIPCL for Site formation and Clearance, Excavation and Earth moving and Demolition service carried out by M/s Dholu KCL before introduction of Mining Service should not be considered as taxable value under Site formation and Clearance, Excavation and Earth moving and Demolition service and Service Tax amounting to Rs. 6,02,56,855/ not paid by them for the financial years 2007-2008 to 2011-12 under Site formation and Clearance, Excavation and Earth moving and Demolition Service should not be demanded and recovered from them under the proviso of Section 73(1) read with Section 68 of the Finance Act, 1994 by invoking the extended period of five years as discussed hereinabove. The matter has been adjudicated vide impugned order-in-original dated 05.12.2013 whereunder all the charges have been confirmed against the appellant 2. Learned advocate appearing on behalf of the appellant submits that mining service came under the service tax net with effect from 01.06.2007 and they have duly been discharging their service tax liability on the amount received for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rastructure Limited vs. CST - 2020 (11) TMI 437-CESTAT (d) Prahlad Rai Company vs. CCE - 2018 (17) GSTL 272 (Tri-Del.) (e) Sadbhav Engineering Limited vs. CST - 2016 (43) STR 288 (Tri-Ahmd.) (f) Associated Soapstone Distributing Co. P. Limited vs. CCE - 2014 (34) STR 865 (Tri-Del.) (g) CCE, Hyderabad vs. Vijay Leasing Company - 2011 (22) STR 553 (Tri-Bang.) (h) M. Ramakrishna Reddy vs. CCE C., Tirupathi - 2009 (13) STR 661 (Tri-Bang.) (i) Aravali Construction Company Pvt. Limited vs. CCE - 2017 (6) GSTL 347 (Tri-Del.) (j) Teknomin Construction Limited vs. CCE - 2017 (4) GSTL 65 (Tri-Del.) 5. Learned advocate has submitted that they have rightly discharged service tax under the category of Mining Service and on this ground alone the demand confirmed under the category of site formation is legally not sustainable. Learned advocate has also argued that the demand under the impugned show cause notice is barred by period of limitation as demand pertains to 01 July 2007 to 22 October 2012 and since there is no cause of invoking extended period of limitation as no element of suppression of facts, mis-represetation or fraud with intent to evade payment of duty a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharged their service tax liability after 01.06.2007 under the service category of Mining Service. We therefore, find that the impugned order-in-original is without any merit. 9. Before parting with the matter, we would like to take shelter of this Tribunal decision in the case of Associated Soap Stone Distributing Co. Pvt. Limited vs. CST, Ahmedabad - 2022 (63) GSTL 250 (Tri. - Ahmd.), the relevant portion of the order is reproduced below:- 4 . We have considered the submissions made by both the sides and perused the records. In the present case, the issue to be decided is that the service in question is classifiable under the category of Site Formation and clearance, Excavation and Earth Moving and Demolition service as contended by the revenue or under the category of Mining service as contended by the appellant. As per the facts of the case, the appellant have carried out the service in terms of contract under Tender No.LP-2/04-05 and similar other contract. As per the contract document, the relevant clauses thereof are reproduced below:- 7. Exploration Interpretation Commissionerate of Geology Mining and GMDC have so far completed about 410 boreholes in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper records, duly signed by the Mines Manager and the Contractor, shall be maintained in terms of tonnage of lignite so removed. Pro-rata volumetric quantity shall then be reduced from Contractor's measured quantity for the plot. Specific gravity of lignite, for this purpose, shall be considered as 1.2 From the above clauses of the contract, the nature of the work is the removal of overburden in relation to mining of lignite therefore, the removal of over burden is exclusively in relation to mining of lignite only therefore, the activities carried out by the appellant i.e. Removal of over burden by excavation in relation to mining of lignite. It is further noticed that the service recipient M/s. GMDC also issued a certificated dated 16.3.2012 which is reproduced below: From the above certificate issued by the Gujarat Minerals Development Corporation Ltd., who is the recipient of service in this case, makes it clear that the work of overburden/interburden removal is a part of mining during the course of mining therefore. The service is pre-dominantly related to mining. We find that even if, the contention of the revenue that the activities of the appellant taken in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the legislature. Therefore, considering the above provision for classification of taxable service particularly in terms of Sub-section (1)(2a) of Section 65A as per the nature of the service in the present case, the removal of over burden which is exclusively meant for mining of lignite shall fall under the category of mining service only. The same issue in the appellant s own case came before the Tribunal Division Bench- Delhi which is reported at ASSOCIATED SOAPSTONE DISTRIBUTING CO. P. LTD. vs. CCE- 2014 (34) STR 865 (Tri.-Del.) wherein, the tribunal has passed the following order:- After hearing both sides, we find that issue involved is whether activity undertaken by the appellants falls under the Site Formation, Clearance and Excavation and Earthmoving and Demolition services as contended by Revenue or under Mining Service as contended by the appellants. For the sake of convenience, Section 65(97a), 65(105)(zzza) and Section 65(105)(zzzy) are reproduced below :- 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 simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al therefore, we can conveniently view that the issue is no longer res-integra. It is also pertinent to note that the appellant, on the same service, paid service tax under the category of Mining Service with effect from 1.6.2007 and it is admitted fact that the revenue had accepted the classification of the same service under Mining Service . It also strengthens the case of the appellant that the service provided by them is of Mining Service and does not fall under the category of Site Formation and Clearance, Excavation and Earth Moving and Demolition Services . 4.1 The appellant also argued that the service can alternatively be classified under supply of tangible goods for use as they have provided the machineries on hire for excavation. Since, we have taken the view that the service per-se is a Mining Service therefore, we are not addressing the alternate submission made by the appellant. 5 . As per the above discussions and findings, we are of the view that the appellant have provided the Mining Service which was not liable to service tax during the relevant period in this case. Therefore, the impugned order is not sustainable hence the same is set aside. Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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