2014 (6) TMI 797 - AT - Service Tax

Waiver of predeposit - mining and post mining services - Cargo Handling Services - Mining of Mineral Oil or Gas Services - transportation of iron ore at their iron and manganese mines, hiring of rock-breakers with excavator at the mines, hiring of machineries for shifting/removal of over-burdens and excavation/loading, shifting and unloading - shifting, loading and transportation and removal of ROM and over-burdens to the fines/sized ores from different filling mines to railway siding - Held that - Analyzing the relevant contracts of loading and transportation works and the representative invoices, it is observed that the distances required to be covered, was very short, i.e. within 2 to 8 Kms., for which the charges varied from Rs.22 to Rs.50 per MT. Although the transportation is one of the link of the contracts, but it does not constitute the essence of the contracts, and the essence of the contracts is handling of iron ore. Consequently, following the Circular No.B11/1/2002-TRU dated 01.08.2002 issued the Board, demand is confirmed - and applicant could not able to make out a prima facie case for total waiver of predeposit of the dues adjudged - stay granted partly.

Summary

Issues:
1. Application seeking waiver of predeposit of Rs.5.85 crore and penalty under Sections 78 and 76 of the Finance Act, 1994.
2. Classification of services under 'Cargo Handling Services' and 'Mining of Mineral Oil or Gas Services'.
3. Interpretation of Circular dated 12.11.2007 by the Board.
4. Financial hardship of the Applicant.

Analysis:
1. The advocate for the Appellant argued that services rendered under Work Orders post-01.06.2007 to M/s. Essel Mining should not be classified as 'Mining of Mineral Oil or Gas Services'. He contended that certain activities were post-mining and hence exempt from service tax. The advocate cited precedents and highlighted the financial strain on the Applicant due to any pre-deposit requirement.

2. The Revenue's representative countered, asserting that all services provided to M/s. Essel Mining were Mining Services, even if involving partial aspects of mining work. The Revenue argued that pre-01.06.2007 services fell under 'Cargo Handling Services', distinct from transportation services within mining areas. Reference was made to a recent Tribunal case to support this position.

3. The Tribunal reviewed the Commissioner's findings, noting that all activities primarily related to mining of ores, aligning with the Circular's interpretation that post-01.06.2007 transportation within factory premises constituted Mining Services. The Commissioner's classification of pre-01.06.2007 services as 'Cargo Handling Services' was upheld based on contract analysis and short transportation distances. The Tribunal differentiated the case from previous judgments, supporting the Revenue's stance and directing a partial deposit of 25% of the service tax.

4. Considering the financial hardship expressed by the Applicant, the Tribunal balanced the interests of the revenue and legal principles. The Tribunal ordered a partial deposit within a specified timeframe, with the remaining dues waived and recovery stayed during the Appeal. Non-compliance would lead to dismissal of the Appeal without further notice, emphasizing the importance of timely deposit.

This detailed analysis of the judgment addresses the issues raised, the arguments presented by both sides, the Tribunal's reasoning, and the final decision regarding the waiver of predeposit and penalty under the Finance Act, 1994.