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TMI Blog2023 (12) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... .04.2014, demanding total Service Tax of Rs.23,12,96,812/-on various Work Orders and recovery of Cenvat credit of Rs. 9,36,76,181/-under Rule 6(3)(i) of Cenvat Credit Rules, 2004 (CCR "04). The total Service Tax/ Cenvat credit r̥eversal demanded in the Notice amounts to Rs. 32,49,72,993/- along with interest and penalties, on the following grounds: (i) Non-payment of Service Tax on evacuation of Ash and Nuisance Free Disposal at the abandoned mines of CCL/BBCL under the category of 'Cargo Handling Services" (ii) Non-payment of Service Tax on transportation of Coal, under the category of 'Mining Services' (iii) Non-payment of Service tax under the category of 'Supply of Tangible Goods Service' (iv) Non-payment of Service Tax on the services availed for hire of trucks from various persons for transportation of coal under the category of GTA Service (v) Violation of CCR '04 by not paying 6% on the value of exempted services 3. The Notice was adjudicated by Commissioner Service Tax, Ranchi, vide impugned Order-in-Original dated 20.02.2015, wherein the Ld. Commissioner has confirmed the following demands and dropped the remaining proceedings initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service to Tenughat Vidyut Nigham Limited, Damodar valley Corporation and Mejia Thermal Power Corporation for evacuation of ash from different filled up Ash Ponds located at the power stations, by way of Nuisance Free Transportation to the abandoned mines of CCL, ECL, BCCL for the disposal of ash. The ash was transported in automatic dippers/dumpers/trucks and unloaded the same into the abandoned mines, by automatically sliding down the ash in the core of such mines. The Ld. Commissioner has classified this service under the category of 'Cargo Handling Service, and confirmed Service Tax whereas they have rendered only transportation service. The Appellant further submits that the department itself was not very clear about the classification of this service. The SCN dated 20.10.2008 issued to the Appellant earlier classified the same service under the category of 'Cleaning Service'. Further, in respect of the transportation services rendered by them, the service receiver has paid service tax under the category of 'GTA Service' in terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994. Accordingly, they contended that the demand confirmed against them on this cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of their contention, the Appellant relied on the decision in the case of Lakshmi Narayan Transport Vs Commissioner of CGST and Central Excise, Bhubaneshwar, reported in (2023) 11 Centax 60 (Tri.-Cal). 6. In view of the above submissions, the Appellant prayed for setting aside the demands and allowing their appeal. 7. The Ld. D.R submits that the contract entered by the Appellant are not mere transportation contracts. Every contract has to be looked into separately to identify the nature of service rendered. The contract for evacuation of ash from different Ash Ponds located at the power stations to the abandoned mines is not transportation service as the distance involved in these contracts is only two to three kilometers. Here, the primary service is loading and unloading and hence it has been rightly classified as 'Cargo Handling service' in the impugned order. Regarding the demand of service tax under 'Mining service', he submits that the primary service in this case is not transportation. The Appellant has rendered mining of coal and hence service tax has been rightly demanded under mining service. Regarding the demand of Service Tax on the transportation se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this decision is squarely applicable in this case. The relevant para of the decision is reproduced below: 5. We find that the issue is no more res integra and has been decided by the Tribunal in the case of Commr. of Central Excise & Service TaxRanchi Vs. M/s. Hindustan Steel Works Construction Ltd. reported in 2018 (11) TMI 1217-CESTAT, Kolkata. The relevant paragraphs of the above mentioned order are being reproduced: " .... 8. The Ld. Advocate, also contended that the fly ash is a saleable goods, which is used in the manufacture of ceramic tiles, mineral wool, etc. And is not a waste since, it is capable of being sold in the market. It is his submission that the removal of fly ash from the pond cannot be termed as cleaning activity under Section 65(24b) of the Finance Act, and accordingly, no Service Tax would be attracted in this case. He relied upon the decisions of the Tribunal in the case of Aakriti Construction (P) Ltd. v. CCE, 2017 (7) G.S.T.L. 478 (Tri.-Del.), and Calcutta Industrial Supply Corporation v. Commissioner of Service Tax, 2017(11) TMI 158 (Tri.-Kol). 10. We find that the cleaning activity has been defined under Section 65(24b) of the Finance Act. " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 65(24b) w.e.f. 16.06.2005. 8.3 The definition of cleaning service under Section 65(24b) is reproduced below: [(24(b) cleaning activity means cleaning including specialized cleaning services such as disinfecting, exterminating of objects o65 24 (b) of (i) Commercial or industrial buildings and premises thereof; or (ii) Factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and remises thereof, But does not include such services in relation to agriculture, horticulture, animal husbandary or dairying] From the above definition, it is clear that the cleaning activity would cover cleaning of commercial or industrial building or premises thereof or factory, plant or machinery, tank or Reservoir of such commercial or industrial buildings or premises. Service Tax Appeal No. 79/2019 8.4 It is seen from the letter dated 03.02.2004 of DVC that the appellant was awarded tender for excavation of Ash from different field of Ash ponds of DTPS, DVC, Waria, Nuisance free transportation and disposal of Ash DTPS, DVC, Waria, Nuisance free transportation and disposal of Ash in abandoned mines of ECL. It appears that the purpose of the tender is for disposal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods by road service" and does not involve any service in relation to "mining of mineral, oil or gas" as provided by Section 65(105)(zzzy) of the Act. 7. The reliance placed on the definition of the term "mines" under Section 2(j) of the Mines Act, 1952 does not assist the Revenue inasmuch as what would be indicated by the said definition is that a mine is not to be understood necessarily in respect of pit-heads of the mining area or the excavation or drilling underground, as may be, but also to the peripheral area on the surface. The said definition has no apparent nexus with the activity undertaken and the service rendered. 8. For the aforesaid reasons, we find no merit in this appeal(s). The appeal(s) is accordingly dismissed. 13. Accordingly, by relying on the decision cited above, we hold that the service rendered by the Appellant is transportation service. As the receiver has already paid service tax in terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994, we hold that the demand confirmed in the impugned order under 'Mining Service' against the Appellant is not sustainable. 14. Regarding the demand of Service Tax on the transportation services rendere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued Circular No. 186/5/2015-ST dated 5-10- 2015, clarifying the issue, which is reproduced below: "3. Goods Transport Agency (GTA) has been defined to mean any person who provides service to a person in relation to transport of goods by road and issues consignment note, by whatever name called. The service provided is a composite service which may include various ancillary services such as loading/unloading, packing/unpacking, transshipment, temporary storage etc., which are provided in the course of transportation of goods by road. These ancillary services may be provided by GTA himself or may be sub-contracted by the GTA. In either case, for the service provided, GTA issues a consignment note and the invoice issued by the GTA for providing the said service includes the value of ancillary services provided in the course of transportation of goods by road. These services are not provided as independent activities but are the means for successful provision of the principal service, namely, the transportation of goods by road. 4. A single composite service need not be broken into its components and considered as constituting separate services, if it is provided as such in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mands in the SCN dated 11.04.2014 are not hit by limitation. 18. In this regards, we observe that the issue involved in the Work Orders covered by earlier Notices were also related to the issue whether Evacuation of Ash from the ponds and transporting it out side ti fill the abandoned mines. Earlier Notice demanded service tax under the category of ,Cleaning Service, for the same work. Thus, it is evident that even though the Work Orders are different, the issue involved is the same. The demand was under 'Cleaning Services' earlier, whereas it is under 'Cargo Handling Service' now. Thus, we hold that as per the decision of Hon'ble Supreme Court in the case of Nizam Sugars, suppression of fact ground cannot be invoked again to demand service tax. We also obeerve that the department has not vbrought in any evidence to substantiate the allegation of suppression in this case, to invoke extended period. Accordingl;y, we hold that the adjudicating authority has rightly dropped the demands on the ground of limitation and not imposed penaltied under Section 78 of the Finance Act, 1994 and Rule 15 of the CCR '04. Thus, we hold that the department's appeal is not sustainable and it is liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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