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TMI Blog2025 (4) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal Nos.223 of 2010 and 228 of 2010 dated 3.8.2023. 2. The revenue has raised the following substantial questions of law for consideration. "a) Whether the Learned Tribunal has committed gross error of law by not considering Services relating to mining for the period 16.06.2005 to 31.03.2008 as being already included as Service Tax under the category of Site Formation and Clearance, Excavation and Earth Moving and demolition Services as envisaged in [97a] respectively of Section 65 of chapter V of the Finance Act, 1994? b) Whether the Learned Tribunal has committed gross error of law by not considering that the services of construction of residential building rendered by the Respondent is already falling under the purview of Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period in question executed the contract for extraction of coal from the mines of the Eastern Coalfields Limited (ECL). 5. The contract being a composite contract, the assessee did not pay service tax nor collected the same from ECL. With regard to construction of residential complexes which includes supply as well as the services, the assessee paid Sales Tax and Value Added Tax under the provisions of West Bengal Sales Tax Act, 1944/West Bengal Value Added Tax, 2003. The show-cause notice dated 16.12.2008 was issued to the assessee demanding service tax under the head "Site Formation Services". The assessee contended that the contract is a comprehensive contract and the department will not be justified in bifurcating this thing. The matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat this has, in fact, been done by the Finance Act, 1994 Act is wholly incorrect as it ignores the second Gannon Dunkerley decision of this Court. Further, the finding that Section 67 of the Finance Act, which speaks of "gross amount charged", only speaks of the "gross amount charged" for service provided and not the gross amount of the works contract as a whole from which various deductions have to be made to arrive at the service element in the said contract. We find therefore that this judgment is wholly incorrect In its conclusion that the Finance Act, 1994 contains both the charge and machinery for levy and assessment of service tax on indivisible works contracts." 7. With the above reasoning, the tribunal accepted the case of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and haulage of excavated minerals, dumping of hauled materials at specified locations and all inclusive rates were split up to identify cost for any specific activity along the mineral extraction chain. Further, the assessee contended that they are a mining contractor and is engaged in the mining operation as defined under the Mines and Minerals (Development and Regulation) Act, 1957 for extraction of minerals within the mining area. Thus, the assessee contended that in the light of the composite nature of work, and inasmuch as the assessee was engaged in mining activities, no service tax was payable prior to 1st June, 2007, when, for the first time, mining service was included by Notification no. 23/2007-SD dated 22.05.2007 (effective fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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