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2017 (11) TMI 158 - AT - Service TaxLevy of service tax - Cargo Handling services - It is submitted that the transportation with incidental loading would be classifiable under Goods Transport Agency service and Service Tax is payable by the client under reverse charge mechanism - Held that - The expressions loading, unloading, packing or unpacking of cargo in the main part of the definition of Cargo Handling Service, make it clear that the loading, unloading, packing or unpacking of cargo would be leviable to Service Tax under the category of Cargo Handling Service - In the present case, we have seen from the work order dated 30.09.2002 of Mahanadi Coalfields Ld., that the scope of the work is under the caption of Hiring of Pay loader for mechanical transfer of Coal into Railway Wagons at SPUR Siding - these agreements/contracts are for loading of coal into wagons in the railway sidings and loading and unloading are of predominant nature. It would come within the purview of the definition of Cargo Handling Service - demand upheld. Business Auxiliary Service - appellant submitted that the activities of removal of shale, stone, extraneous materials and breaking clean Coal to (-) 200 mm size are integral part of the mining process - Held that - the Tribunal in the case of Aryan Energy (P) Ltd. v. Commr. of Cus. C.Ex., Hyderabad-I 2008 (5) TMI 248 - CESTAT Bangalore held that the activities relating to Coal mining, washing of coal (benefication) are treated as part of mining activity and mining service came into effect from 01.06.2007 and set aside the demand under the category of Business Auxiliary Service - the processing of the coal in a mine is in a wide range. The activities of removal of the shale, stone, extraneous materials and breaking up of the coal are after the excavation of coal from the mines. Apparently, the processes undertaken by the appellants are for marketability of the coal and part of the mining activities. Hence, the demand of Service Tax under the category of Business Auxiliary Service cannot be sustained - demand withheld. Site Formation Services - appellant submitted that the excavation and removal of over-burden is an integral part of the mining activity and it is in relation to mining of mineral and taxable under section 65(105)(zzzy) as mining of mineral service w.e.f. 01.06.2007 - Held that - we find from the works order that the blasting will be done by Department of Explosives and the excavation work will be done by the appellant in the nature of extraction of coal mechanically in benches from available coal at any depth. Therefore, it is an integral part of the mining job and we agree with the submission of the appellant - demand withheld. Cleaning services - adjudicating authority observed that the appellant was allocated work by Damodar Valley Corporation (DVC) for removal of technological waste from CHP area, DTPS and it would come under cleaning service - Held that - from the definition of cleaning service under section 65(24b) , it is clear that the cleaning activity would cover cleaning of commercial or industrial building or premises thereof or factory, plant or machinery, tank or Reservoir of such commercial or industrial buildings or premises - t is seen from the letter dated 03.02.2004 of DVC that the appellant was awarded tender for excavation of Ash from different field of Ash Ponds of DTPS, DVC, Waria, Nuisance free transportation and disposal of Ash in abandoned mines of ECL. It appears that the purpose of the tender is for disposal of Ash in the abandoned mines of ECL. The appellant is engaged for transportation and disposal of Ash in the abandoned mines. The letter does not show that the appellant was engaged for cleaning of the premises - demand withheld. Construction of Residential Complex Service - adjudicating authority observed that the appellant was engaged for the construction of staff dormitory including the work of internal water supply and sanitation at NTPS, DVC, Mejia by National Building Construction Co.Ltd.. It is included within the definition of Residential Complex under section 65(91a) of the Act - Held that - the appellant constructed a building consisting of 54 individual units of Bachelor accommodation having one room with kitchen space and attached Bathroom in each unit. This fact was not disputed by the appellant. It is not a case of construction of one residential unit. Therefore, it would come within the purview of definition of complex and the demand of Service Tax is justified - demand upheld. The demand of Service Tax on other issues and imposition of penalties are set aside. Appeal allowed in part.
Issues Involved:
1. Cargo Handling Service 2. Business Auxiliary Service (BAS) 3. Site Formation Services 4. Cleaning Service 5. Construction of Residential Complex Service 6. Commercial and Industrial Construction Service 7. Maintenance and Repair Service 8. Limitation and Penalties Issue-Wise Detailed Analysis: 1. Cargo Handling Service: The appellant obtained contracts for various activities including transportation and loading of coal within mines, and mechanical transfer of coal into railway wagons. The appellant argued that these activities should be classified under Goods Transport Agency service, with Service Tax payable by the client under the reverse charge mechanism, not under Cargo Handling Agency Services. The adjudicating authority, however, classified these activities under Cargo Handling Service as defined under section 65(23) of the Finance Act, 1994, based on the prominence of the handling aspect over transportation. The Tribunal upheld this classification, referencing previous decisions and definitions that supported the inclusion of such activities under Cargo Handling Service. 2. Business Auxiliary Service (BAS): The appellant performed activities such as removal of shale, stone, and breaking clean coal to make it marketable. The adjudicating authority classified these as post-mining activities, taxable under Business Auxiliary Service. However, the Tribunal referred to the case of Aryan Energy (P) Ltd., which held that such activities are part of mining and thus taxable only from 01.06.2007 under mining service, not under BAS. The Tribunal concluded that the processes undertaken by the appellant were part of mining activities and thus, the demand under BAS could not be sustained. 3. Site Formation Services: The appellant was engaged in excavation and removal of over-burden, activities integral to mining. The adjudicating authority classified these under Site Formation and Clearance, Excavation and Earth Moving and Demolition services under section 65(97a). The Tribunal, however, agreed with the appellant that these activities were part of mining, referencing the case of M. Ramakrishna Reddy, which held that similar activities were classified under mining services effective from 01.06.2007. Therefore, the Tribunal held that the appellant's activities were integral to mining and not taxable under Site Formation Services. 4. Cleaning Service: The appellant was contracted to transport and dispose of ash, which the adjudicating authority classified under cleaning services as defined under section 65(24b). The Tribunal found that the appellant was engaged primarily in transportation and disposal of ash, not in cleaning activities. Therefore, the demand for Service Tax under cleaning services was not justified. 5. Construction of Residential Complex Service: The appellant constructed a staff dormitory consisting of 54 units, which the adjudicating authority classified under Construction of Residential Complex Service as defined under section 65(91a). The appellant argued that a dormitory cannot be equated with a residential complex and that the contract was a works contract involving supply of materials and labor. The Tribunal upheld the adjudicating authority's classification, noting that the construction involved multiple residential units, fitting the definition of a residential complex. 6. Commercial and Industrial Construction Service: The appellant did not contest the demand under this category. The Tribunal upheld the demand for the normal period of limitation. 7. Maintenance and Repair Service: The appellant did not contest the demand under this category. The Tribunal upheld the demand for the normal period of limitation. 8. Limitation and Penalties: The appellant contested the demand on the grounds of limitation. The Tribunal, referencing the case of Singh Brothers, held that the extended period of limitation could not be invoked due to the classification issues involved. Consequently, the penalties were also not justified. Conclusion: The Tribunal modified the impugned order, upholding the demand of Service Tax on Cargo Handling Service, Construction of Residential Complex Service, Commercial & Industrial Construction Service, and Maintenance & Repair Service along with interest for the normal period of limitation. The appellant's payment of ?2,03,476/- on CHP maintenance work was upheld. The demand of Service Tax on other issues and the imposition of penalties were set aside. The appeal was disposed of accordingly.
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