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TMI Blog2023 (12) TMI 1215X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the Appellant has been providing the services of 'Sizing 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 08.03.2011 was issued to the Appellant demanding service tax of Rs.81,25,462/- including Education Cess and SHE Cess, for the period 01.04.2006 to 31.03.2009. Another Notice dated 14.12.2011 was issued demanding service tax including Cess of Rs.85,33,419/-, on the same issue for the period 01.04.2009 to 31.03.2011. Both the notices were adjudicated by the Commissioner, Central Excise and Service Tax, Dibrugarh, vide impugned Order-in-Original dated 27.02.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5012/2021 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 coal manufactured/produced in the mine, upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngaged 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 2015-16, 2016-17 and 2017-18 (upto June 30, 2017) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner 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 undisputedly, the appellant has paid the sales tax/vat when it is so crus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility under one law precludes the invoking of another law merely for garnering revenue that has thereby escaped one of the jurisdictions. By discharging the tax liability on the job work charges as well as by discharge of VAT liability on 'brought out' items used for fabrication at site, the scope for considering the activity as manufacture is eclipsed entirely. In this context of mutually exclusive levies under the scheme of taxation in the Constitution, the activity of the respondent is works contract and hence not leviable to duty under Central Excise Act, 1944." (emphasis added) 10.4 Respectfully following the above stated decisions, which also apply fully to the instant case, we find no infirmity with the impugned order of the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l by the respondents for sale attracts the service tax under the business auxiliary service as per Section 65 (19) 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. With this background, we heard Shri K. Chowdhury and Shri Rajiv Agarwal, Ld. Counsels for the parties. 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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