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TMI Blog2024 (1) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... t paid the service tax on the total amount received by them including the transportation charges. Department formed an opinion that the transportation charges are to be covered under mining services. 1.1 On scrutiny of details of invoices raised by the appellants for a period from January 2015 to March 2016, to contract parties/service receivers and their respective ledger accounts, department noticed that the appellant had received an amount of Rs.19,49,69,813/- against the transportation charges on which the service tax amounting to Rs.2,63,57,197/- was payable. However, as apparent from the examination of ST-3 returns and copies of GAR-7 challan for the respective period, the appellant was found to have deposited service tax only amounting to Rs.44,01,223/- under "Transport of goods by road agency service". Thus, service tax amounting to Rs.2,19,55,974/- was observed to have been short paid by the appellant. Resultantly, the Show Cause Notice No. 1813 dated 14.12.2017 was served upon the appellant proposing the recovery of the aforesaid short paid amount along with the proportionate interest and the appropriate penalties. The said proposal has been confirmed vide the Order-in-O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber 2014 respectively with the same allegations as are contained in the present show cause notice. Though the departmental adjudicating authority had confirmed the demand of both the said show cause notices. However, the appeal filed before this Tribunal has been decided in favour of the assessee-appellant, setting aside the confirmation of the said demand. Finally it is submitted that in view of the earlier decisions in favour of appellant and the regular filing of returns by the appellants, also the regular audit of their records by the department, the present is not the case of misrepresentation or suppression of any fact as is alleged in the show cause notice. The extended period is therefore has wrongly been invoked. Learned counsel has relied upon the decision of Hon'ble Supreme Court in the case of CCE Vs. Chemphar Drugs and Liniments reported as 1989 (40) ELT 276 (SC). The imposition of penalty is also prayed to be set aside. While relying on the decisions in the case of Commissioner of Customs & Central Excise, Vapi Vs. M/s. Shree Soap & Chemical Ind reported as 2008-TIOL-950- CESTAT-AHM and the decision of Steel Authority of India Ltd. Vs. Commissioner of Customs, Calcutt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the excavated limestone along with the over burden/reject from railway siding to the grinding unit. We appreciate that in all the contracts executed by the appellants with the respective principal, the transportation cost has been charged separately. In light of these observations it is to be seen as to whether the whole activity of the appellant or the services rendered by the appellant are mining service only or are two different services. For the purpose, we take notice of the fact that w.e.f. 01.07.2012 the term "service" has been defined under Section 65B (44) of the Finance Act in following way: Section 66B (44) "service" means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include- (a) an activity which constitutes merely,- (i) a transfer of title in goods or immovable property, by way of sale, gift or in any other manner, or (ii) such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution, or (iii) a transaction in money or actionable claim; (b) a provision of service by an employee to the employer in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t territory; 4.4.4 As per section 668 (51) of the Finance Act, 1994 "taxable service" means any service on which service tax is leviable under section 66B. I find that the above statutory provision clearly show that the activity performed by the Noticee against which they received the consideration falls under the category of service. Further, the Noticee has never questioned taxability of the consideration received; therefore, finding the fact admitted, no further deliberation on the issue of taxability is required. We also take note of the Section 66F of the Finance Act, 1994. It reads as follows: Section 66F of the Finance Act, 1994 provides the principles of interpretation of specified descriptions of services or bundled services with effect from 01.07.2012 as follows: (1) Unless otherwise specified, reference to a service (herein referred to as main service) shall not include reference to a service which is used for providing main service. (2) Where a service is capable of differential treatment for any purpose based on its description, the most specific description shall be preferred over a more general description. (3) Subject to the provisions of sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to sell from the agreement to do work and render service and to impose a tax thereon cannot be questioned and will and untouched by the present Judgment." In another decision titled as Jain carrying Corporation Vs. Commissioner of Central Excise, Jaipur, reported as 2015 (39) STR J370 SC, wherein it was held that if separate rates are provided for separate activities under a common agreement/instrument, the activities should be classified under their respective categories. Though the department has also relied upon several decisions but most of them pertains to the comprehensive/composite contract. As already discussed above, it is not the fact for the contracts in question. 5.3 Seen from the definition of mining services as was brought into statute w.e.f. July 2007 and is made taxable under Section 65 (105) (zzzy), the section provides for a service tax on the service provided or to be provided to any person by any other person in relation to mining or mineral, oil or gas, the activity of transportation cannot be held as part of mining of mineral, oil or gas. Department's own Circular No. 232/2/2006-Cx. Dated 12.11.2007 also recognizes transportation as a post mining activit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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