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2019 (8) TMI 1512 - AT - Service TaxSite Formation and Clearance, Excavation and Earth Moving and Demolition Services - overburden removal and extraction and transportation of coal - C.B.E.C. Circular in F. No. B1/6/2005-TRU dated 27.07.2005 - HELD THAT - It is clarified in the Circular that such an activity like overburden removal or excavation and earth moving would fall under the category of Site Formation and Clearance, Excavation and Earth Moving and Demolition Services, which was also further clarified by other clarifications/Circulars vide TRU letter D.O.F. No. 334/1/2007-TRU dated 28.02.2007 and C.B.E.C. Circular in F. No. 232/2/2006-CS.4 dated 12.11.2007 and also to the effect that Site Formation and Clearance, Excavation and Earth Moving and Demolition Services and the part of services representing coal extraction would fall under the category of Mining of Mineral Oil or Gas Services , taxable with effect from 16.06.2005 and 01.06.2007 respectively - clearly the contracts/work orders have been executed much earlier, as noted by us elsewhere in this Order, prior to the introduction of taxability on the services involved in this case and also with no retrospective effect - the demand on Site Formation Services that are dropped by the Adjudicating Authority, is upheld. Mining of Mineral Oil or Gas Services - HELD THAT - It is deemed proper to remit this issue to the file of the Adjudicating Authority for the limited purpose of verifying the relevant contracts/agreements entered into for Mining of Mineral Oil or Gas Services and to ascertain the date of completion/rendition of service Commercial or Industrial Construction Service - contracts with M/s. UCIL for extraction of uranium ores - HELD THAT - The Revenue has not placed on record any material evidence to prove that the extraction of uranium is a commercial/industrial activity. The initial burden is always on the Revenue and apparently, that has not at all been discharged - mere allegation with absolutely no document in support of the same would not suffice, more so in the case of a Government organization like M/s. UCIL. It is quite clear that the extraction of uranium ore is for the Union of India and the same is a restricted activity. Therefore, by no stretch of imagination can we accept the contentions of the Ld. Departmental Representative for the Revenue that the same would amount to an activity of commerce or industry. Deletion of Penalties and interest - HELD THAT - There is also no dispute that the assessee is a Government organization and hence, there cannot be any scope to allege suppression, misstatement, etc. This fact coupled with the action of the assessee in remitting the payment at least one year before the issuance of the Show Cause Notice establishes the bona fides of the assessee, which per se makes out a case for invoking Section 80 of the Finance Act, 1994 for dropping the penalty and interest. The Ld. Commissioner himself having dropped the penalties and interest, the same is upheld. Appeal allowed by way of remand - part issue decided against Revenue.
Issues Involved:
1. Taxability of services under various categories. 2. Allegations of suppression and misstatement by the assessee. 3. Applicability of Service Tax on contracts executed prior to the introduction of taxability. 4. Classification of services rendered to M/s. UCIL. 5. Penalties and interest under Section 80 of the Finance Act, 1994. Issue-wise Detailed Analysis: 1. Taxability of Services: The assessee was alleged to have rendered services such as "Site Formation and Clearance, Excavation and Earth Moving and Demolition Services" effective from 16.06.2005, "Mining of Mineral Oil or Gas Services" effective from 01.06.2007, and "Commercial or Industrial Construction Service" effective from 10.09.2004. The Show Cause Notice quantified Service Tax under these categories, proposing a total demand of ?1,67,88,903/- for the period from June 2005 to August 2008. The Adjudicating Authority dropped the demand for "Site Formation and Clearance, Excavation and Earth Moving and Demolition Services" and "Commercial or Industrial Construction Service" but sustained the demand for "Mining of Mineral Oil or Gas Services." 2. Allegations of Suppression and Misstatement: The Show Cause Notice alleged that the assessee had not only suppressed but also mis-stated facts with an intention to evade Service Tax. However, the Ld. Commissioner found no element of mens rea, noting that the assessee was a Government-controlled entity and had made payments at least one year before the issuance of the Show Cause Notice. 3. Applicability of Service Tax on Contracts Executed Prior to the Introduction of Taxability: The assessee argued that the execution of contracts/work orders was completed before 01.06.2007, the date when taxability for "Site Formation Services" was introduced. The Tribunal referred to the C.B.E.C. Circular and the decision of the Co-ordinate Bangalore Bench of the Tribunal in the case of M/s. M. Ramakrishna Reddy, concluding that the taxability would only be from 01.06.2007 and not for the period prior. The demand on "Site Formation Services" was thus upheld as dropped by the Adjudicating Authority. 4. Classification of Services Rendered to M/s. UCIL: The construction of Decanted Water Monitoring Pond and allied works for M/s. UCIL was undertaken for the exclusive use in connection with the extraction of uranium ore, which is not a commercial or industrial activity. The Tribunal found that the Revenue failed to prove that the extraction of uranium was a commercial/industrial activity. The extraction was for the Union of India, and the uranium ores were sold exclusively to the Department of Atomic Energy. The demand under "Commercial or Industrial Construction Service" was thus correctly dropped by the Ld. Commissioner. 5. Penalties and Interest: The Tribunal upheld the Ld. Commissioner's decision to drop penalties and interest, noting that the assessee, being a Government organization, could not be alleged to have suppressed or misstated facts. The payment made by the assessee at least one year before the issuance of the Show Cause Notice established their bona fides, justifying the invocation of Section 80 of the Finance Act, 1994. Conclusion: The Tribunal dismissed the Revenue's appeal and partly allowed the assessee's appeal, remanding the issue of "Mining Services" for verification of the date of completion/rendition of service. The cross objection filed by the assessee was disposed of accordingly.
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