TMI Blog2024 (3) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the appellant that the tenor of the agreement is an important factor while determining the classification. The agreement between the parties simply provides the rate for transportation per tonne from mine head to the dump Yard. Merely because transportation services are being rendered within the mine lease area cannot make the services mining services, unless it is an integrated contract, which includes transportation of waste as well as mining activity, which we find from record is not the case of the department - appropriate classification in so far as the aforesaid activity is concerned would be goods transport agency services and not mining services - no case of suppression or willful misstatement has been made out in the present case as the department is not clear about the classification issue when they had issued the Show Cause Notice. Therefore, the demand of Service Tax confirmed against the appellant is set aside. Whether the expenditure incurred by the appellant on feasibility study for acquiring/procuring coal mines outside India would be classified under Management Consultants Service ? - HELD THAT:- The services rendered should be in connection with management ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de - appeal allowed. - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. A.K. JYOTISHI, MEMBER (TECHNICAL) Shri S. Sunil, Advocate for the Appellant. Shri M. Anukathir Surya, AR for the Respondent. ORDER The Appellant is registered with the service tax department for the services- mining of mineral, oil or gas service; transport of goods by road service and supply of tangible goods service. Pursuant to audit for the period 2009 10 till 2011 12, it appeared to revenue that Appellant have not paid the service tax correctly. Accordingly, SCN dated 08/10/2014 was issued invoking the extended period of limitation for the period March 2009 to March 2011. 2. It appeared to revenue that Appellant is engaged in transporting waste from mine head to waste dump within the mine lease/command area and claiming exemption under GTA service under notification No. 32/2004 ST, as the amount of bill per consignment is less than Rs.750. It appeared that the Appellant is not issuing any consignment note to the service receiver. The services are in the nature of pre-mining activity, that is, transport of waste from mine head to waste dump Yard provided to Nidhi mining Pvt Ltd and others. It further appeare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the mine leased area, would be taxable as mining service or as Goods Transport Agency service in facts of present case; (ii) Whether the expenditure incurred by the appellant on feasibility study for acquiring/procuring coal mines outside India would be classified under Management Consultants Service ; (iii) Whether Cenvat Credit was rightly taken on tippers and dumpers supplied to M/s AMR Constructions Ltd during the course of providing output service supply of tangible goods ; (iv) Whether extended period of limitation have been rightly invoked. 8. The learned counsel for the Appellant assailing the impugned order submits as follows: A . As regard the first issue, the case of the Revenue is that the said services are in the nature of pre-mining activity and therefore, would be taxable as mining service under Section 65(105)(zzzy) of Finance Act, 1994. a) The learned Counsel urges that the activity was of transportation which is evident from the findings of the learned Commissioner who has, stated that the appellant had provided service of transportation of waste from mine head to waste dump yard to Nidhi Mining Pvt Ltd. Learned Counsel further argued that the tenure of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o far as the aforesaid activity is concerned would be goods transport agency services and not mining services. We are also of the view, no case of suppression or willful misstatement has been made out in the present case as the department is not clear about the classification issue when they had issued the Show Cause Notice. Therefore, the demand of Service Tax confirmed against the appellant is set aside. B. On the second issue demand of service tax on expenditure on feasibility study for acquiring and procuring coal mines outside India- The impugned order has confirmed the demand under the head Management or Business Consultantancy service and has demanded service tax in terms of Section 66A-RCM, of the Finance Act, 1994. a) The learned Counsel for the appellant submits that the activity for which they had incurred the expenditure would not fall within the definition of Management or Business Consultant The learned DR while supporting the impugned order submitted that the expenditure is incurred in connection with the business and would thus fall within the definition of Management or Business Consultant service , whereas on the contrary the learned Counsel for the appellant subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed AR for revenue submitted that eligibility of cenvat credit has to be decided when the goods are received and not when the credit is being availed. When the goods i.e tippers and dumpers were received, the same were not covered in the definition of capital goods and thus taking of cenvat credit on the said items prior to 22.06.2010 is irregular and the demand has been rightly confirmed in the impugned order. a) We have considered the rival submissions advanced by both the sides. We find that this issue is squarely covered by Board Instructions dated 23.10.2008, which reads as under: Supply of tangible goods including machinery, equipments and appliance for use, without transferring right of possession and effective control of such tangible goods is a taxable service in terms of provision of Section 65(105)(zzzzj) of the Finance Act, 1994. In some case, vehicles, aircrafts, vessels, etc., are also supplied in the above manner and such activities also fall under the said taxable service. In this regard, a doubt has arisen whether the credit of Excise duty/Additional duty of Customs (commonly known as CVD) paid on such items are available to the provider of such taxable service and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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