2017 (3) TMI 1365 - AT - Service Tax

Mining work - appellant have undertaken the work of prospecting mineral deposit, de-watering of mineral, removal of over burden, raising of china clay exposed after removal of over burden and loading china clay - whether the activity of appellant will be classified under mining services or under Cargo Handling Service? - after the introduction of tax entry for mining service the appellant were registered with the department and were discharging service tax applicable - Held that - Having examined the scope of work undertaken by the appellant as mentioned in the SCN, we find that the same is covered under the tax entry under Section 65(105)(zzzy) of the Finance Act, 1994. The clarification dated 28.02.2007 issued by CBEC states that mining service covers cite formation and clearance, excavation and earth moving and various outsourced activities provided for mining - appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against order of Commissioner (Appeals) regarding non-payment of service tax on various services provided by the appellant including cargo handling, site formation, earth moving, and survey and exploration services. Appellant contests the tax liability and penalties imposed under Sections 76, 77, and 78 of the Finance Act, 1994.

Analysis:
The appellant, engaged in providing taxable services, was investigated for non-payment of service tax on services related to mining work. The original authority confirmed the service tax demand and imposed penalties under Sections 76, 77, and 78 of the Act. On appeal, the Commissioner (Appeals) upheld the order, leading to the present appeal.

The appellant argued that their activities, such as prospecting mineral deposits and china clay removal, do not fall under the services mentioned for tax liability. They contended that their mining services were taxable only from 01.06.2007, and there was no liability before that date. The appellant highlighted the lack of segregation in the tax demand under different service categories.

The Tribunal noted that the lower authorities did not specify the quantum of tax liability under each service category. It observed that the appellant's mining activities were wrongly taxed under different service headings without proper legal justification. Citing precedents, the Tribunal emphasized that activities falling under a new tax entry cannot be taxed under pre-existing entries unless the scope is modified. The Tribunal referred to cases where similar mining activities were not taxable before 01.06.2007.

After reviewing the appellant's work scope and relevant legal provisions, the Tribunal found that the activities were covered under the tax entry for mining services. Referring to a CBEC clarification, the Tribunal concluded that the mining service included site formation, excavation, and outsourced activities for mining. Considering the factual and legal aspects along with precedents, the Tribunal held the impugned order unsustainable and allowed the appeal, setting aside the previous decision.

In the absence of legal justification for taxing the mining activities under different service categories and considering the specific tax entry for mining services, the Tribunal found the tax demand and penalties imposed on the appellant to be incorrect. The decision was based on a thorough analysis of the appellant's activities, legal provisions, and relevant case laws, leading to the allowance of the appeal and the setting aside of the previous order.

(Pronounced on 09/02/2017).