2024 (8) TMI 521 - AT - Service Tax

Levy of service tax - mining service - supply of tangible goods for use service - time limitation. Mining service - it is submitted that the demand of service tax under the category of mining services is not sustainable as it would amount to manufacture - HELD THAT - It is clear that the Appellants were engaged in supply of sized stones/ boulders, Ld. Commissioner has not denied this fact. It is found that the demand of service tax under the taxable category of mining services is not sustainable in view of the decision of coordinate bench in case of COMMR. OF CENTRAL EXCISE S. TAX, BOLPUR VERSUS M/S INTEGRATED COAL MINING LTD. 2021 (1) TMI 179 - CESTAT KOLKATA wherein it was observed ' Sizing of coal is an incidental and ancillary process to make coal marketable and thus complete manufacture of coal and to make it into excisable goods as per Section 2(d) of the Central Excise Act. The process of sizing of coal is also therefore outside Section 65(19) of the Act since it is a process in the manufacture of the final product, sized coal.' Thus, the demand of service tax under the taxable category of mining is not sustainable in the present case. Demand of service tax under the category of supply of tangible goods for use - HELD THAT - It is found that Ld. Commissioner has not examined the terms of the work orders issued to the Appellants. Ld. Commissioner has confirmed the demand of service tax despite of the fact that he has categorically recorded the submission of the Appellants that effective control and possession of the equipment was transferred to the recipient. It is found that in case of Air Liquide India Holdings Pvt. Ltd. 2023 (9) TMI 1495 - CESTAT AHMEDABAD where it was held that ' It therefore leaves no doubt that credit on Capital goods is available even if they are removed outside from the premises of the Appellants for providing output service. We are therefore of the view that there is no ground for denial of cenvat credit on Capital goods to the Appellants.' Thus, the demand of service tax under the taxable category of supply of tangible goods for use is not sustainable and the same is set aside. Time Limitation - HELD THAT - The appeals succeed on the ground of limitation as well as suppression or wilful misstatement of fact cannot be alleged on the part of the Appellants as revenue authorities were well within the knowledge of the activities of the Appellants. The appeals filed by the Appellants are allowed.

Issues Involved:

1. Demand of service tax under the category of mining services.
2. Demand of service tax under the category of supply of tangible goods for use.
3. Applicability of extended period of limitation.

Issue-wise Detailed Analysis:

1. Demand of Service Tax under the Category of Mining Services:

The Appellants contended that the demand of service tax under the category of mining services is not sustainable as their activities amounted to manufacture. They argued that the extraction and sizing of boulders were part of the manufacturing process, making the sized boulders excisable goods attracting NIL rate of duty under Section 66D(f) of the Finance Act, 1994. The Commissioner, however, classified these activities as mining services under Section 65(105)(zzzy) of the Finance Act, 1994, based on the work orders and seized documents, which described the activities as excavation charges.

The Tribunal found that the Appellants were engaged in the supply of sized stones/boulders, and the Commissioner did not deny this fact. Citing the decision in Integrated Coal Mining Ltd. (2021 (1) TMI 179 - CESTAT Kolkata), the Tribunal held that the activities amounted to manufacture, as the sizing of coal is incidental and ancillary to making coal marketable. Similarly, in S.N. Sunderson (Minerals) Ltd. (1995 (75) ELT 273 (MP)), affirmed by the Supreme Court (2002 (143) ELT 483 (SC)), it was held that crushing of limestone into chips is a manufacturing process. Therefore, the Tribunal concluded that the demand of service tax under the taxable category of mining services is not sustainable.

2. Demand of Service Tax under the Category of Supply of Tangible Goods for Use:

The Appellants argued that the demand under this category was not justified as the effective control and possession of the equipment were transferred to the recipient, making it a deemed sale under Article 366(29A)(d) of the Constitution of India. They also pointed out that the Commissioner did not examine the work orders or provide a discussion on how the activities fell under the definition of supply of tangible goods for use.

The Tribunal referred to the decision in Air Liquide India Holdings Pvt. Ltd. (Order No. A/12032-12036/2023 dated 13.09.2023), which clarified that if the right of possession and effective control of the equipment is transferred to the recipient, the transaction qualifies as a deemed sale and is not subject to service tax. The Tribunal also cited Quippo Energy Pvt. Ltd. (20220-VIL-937-CESTAT-AHM-ST) and other judgments, which reinforced that transactions involving transfer of possession and control are deemed sales and not liable to service tax. Therefore, the Tribunal held that the demand under the category of supply of tangible goods for use is not sustainable.

3. Applicability of Extended Period of Limitation:

The Appellants argued that the extended period of limitation was not applicable as they had filed an application under the amnesty scheme VCES declaring service tax liability, which was accepted by the revenue authorities, indicating that the authorities were aware of their activities.

The Tribunal noted that the revenue authorities were indeed aware of the Appellants' activities, as evidenced by the acceptance of the VCES application. Therefore, the Tribunal concluded that the extended period of limitation could not be applied, and suppression or willful misstatement of facts could not be alleged against the Appellants.

Conclusion:

In conclusion, the Tribunal allowed the appeals filed by the Appellants, holding that the demands of service tax under the categories of mining services and supply of tangible goods for use were not sustainable. The Tribunal also ruled in favor of the Appellants on the ground of limitation, providing consequential relief.

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