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TMI Blog2023 (12) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... g of coal' to their customers but not paying service tax on the consideration received towards rendering the services under the category of 'Business Auxiliary Service'. Accordingly, a show cause notice dated 10.10.2011 was issued to the Appellant demanding service tax of Rs.24,86,45,980/-including Education Cess and SHE Cess, for the period April 2006 to February 2011. The Notice was adjudicated by the Commissioner, Central Excise, Customs and Service Tax, Bhubaneswar-I, vide impugned Order-in-Original COMMR/B-I/ST- 30/2012 DATED 30.11.2012, wherein the demands of service tax of Rs. 24,86,45,980/- was confirmed along with interest and imposed equal amount of tax as penalty under Section 78 of the Finance Act, 1994. Penalty of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue is no longer res integra, as the coordinate Bench of this Tribunal in Appellant's own case - Commissioner of Central Excise & Service Tax, BBSR-I vs Mahanadi Coalfields Limited, Final Order No 76585/2017 dated 21.08.2017, after placing reliance on the judgment of Bharat Sanchar Nigam Limited v Union of India, 2006 (2) STR-161(SC) has held that sales tax and service tax cannot be made applicable on the same transaction. The above judgment of the CESTAT Kolkata has been followed consistently by other Benches on the same issue in the following cases wherein they have set aside the demand of service tax: (i) M/s South Eastern Coalfields Limited v CCE & ST, Raipur in Service Tax Appeal No 54276 of 2014, Final Order No 50878 dated 22.02.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax, Bolpur, vide Final Order No.75012/2021 dated 05.01.2021. The relevant part of the decision is reproduced below: 8.1 Sizing of coal is an incidental and ancillary process to make coal marketable and thus complete "manufacture" of coal and to make it into "excisable goods" as per Section 2(d) of the Central Excise Act. The process of sizing of coal is also therefore outside Section 65(19) of the Act since it is a process in the manufacture of the final product, sized coal. 8.2 We also find from the records of the present proceedings that in respect of exactly the same work undertaken by ICML at the said mines, right from the beginning when central excise duty became payable, ICML has been paying central excise duty on the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise Department is that ICML is engaged in the manufacture of bituminous coal classifiable under Chapter Sub-Heading 27011200 of the First Schedule to the Central Excise Tariff Act, 1985, for which it is holder of central excise registration number, and that ICML had manufactured and cleared the said goods on payment of central excise duty computed on the assessable value/transaction value that included the base price, sizing charges, washing charges and transportation charges, but had not paid central excise duty by not including cesses/fees, royalty and stowing excise duty, resulting in short payment of excise duty payable of amounts confirmed by the respective adjudication orders. Even for the periods pertaining to years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act, 1994. But by the impugned order, the Commissioner dropped the demand. Being aggrieved, the Department has filed the present appeal. 3. ..................................................................... 4. After hearing both the parties it appears that the appellants had paid the sales tax/vat and total amount of sale includes crushing charges as well as other charges e.g. silo loading charges and the same was shown in the profit and loss account. The Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd. Vs. UOI reported in 2006 (2) STR 161 (SC) observed that sales tax and service tax cannot be made applicable on the same transaction as the same is includible to each other. 5. In the instant case undi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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