2014 (12) TMI 626 - AT - Service Tax

Waiver of pre deposit - Mining of Mineral Oil or Gas Service - GTA services - whether such an activity undertaken by these appellants is to be considered as part of mining service or the service tax is leviable under the GTA service - Held that - when transportation activity is undertaken within the mine or from the mine outside the mine are to be classified under cargo handling service or goods transport by road pending upon the method adopted. However the Commissioner has interpreted it differently. He has observed in the order-in-original in paragraph 19.1.6 that the activities are undertaken from mine head to pit head and after 01.06.2007 the same is covered under mining activities. The only ground taken seems to be that the transportation is within the mining area. However learned counsel vehemently contested this and stated that the appellants were engaged in transportation of iron ore from mine head/pit head to the Railway sidings and the activity undertaken by them cannot be said to be within the mines. In any case the circular issued by the Board can lead to understanding and an interpretation that even for transportation within the mine or transportation from the mine to the railway sidings, mining service may not be the correct classification. It is well settled that if an assessee chooses to interpret a circular or a circular in his favour when two interpretations are possible, he cannot be found fault with. In any case in such a case extended period may not be invokable. Appellants were paying service tax under the category of GTA service and such tax was paid till 2011 without any failure. When the service receiver became a partnership firm, the appellants promptly informed that the receiver started paying the tax and intimated the fact to the department. The actions of the service providers as well as the service receivers in this case in our opinion reflects the fact that they had a bona fide belief that they were implementing the statute correctly. On this ground, appellants can be said to have made out a prima facie case on limitation. - Stay granted.

Summary

Issues:
Service tax demand under 'Mining of Mineral Oil or Gas Service' for the period from October 2007 to March 2011; Classification of transportation activity of iron ore by the appellants as part of mining service or under GTA service.

Analysis:
The judgment dealt with the issue of service tax demand under the category of 'Mining of Mineral Oil or Gas Service' for the period from October 2007 to March 2011 from five appellants involved in the transportation of iron ore. The appellants had initially paid service tax under the category of GTA services until 31.03.2008. However, due to a change in the service receiver's constitution to a partnership firm, the appellants ceased paying service tax, stating that the service receiver would pay. The department canceled the registration certificates of the service providers. The key question was whether the transportation activity of iron ore by the appellants should be considered part of mining service or fall under GTA service.

The appellants admitted to transporting iron ore from mine head to pit head and to the Railway siding without a written agreement, based on oral understanding, and receiving payments by cheque only. They believed that service tax was payable under GTA service and not under mining service. The circular issued by the Board was relied upon, indicating that transportation within or outside the mine falls under GTA or cargo handling service. The Commissioner, however, interpreted the activities from mine head to pit head as part of mining activities post-01.06.2007. The Tribunal referred to a previous decision, stating that the appellants' activities cannot be classified as mining service, supporting the appellants' case.

Moreover, the appellants had a bona fide belief that they were correctly implementing the statute, as evidenced by their prompt actions when the service receiver became a partnership firm. The Tribunal found that the appellants had made out a prima facie case in their favor on both limitation and merits. Consequently, the requirement of pre-deposit was waived, and a stay against recovery was granted during the appeal's pendency. The judgment was delivered on 21.5.2014 by B S V Murthy and S K Mohanty, JJ.