2018 (11) TMI 31 - AT - Service Tax

Classification of services - composite mining contract - contract with M/s. TISCO was also for consolidated mining activities - whether classified as mining services or as Cargo Handling services? - adjudicating authority has picked up two of the activities for charging service tax under the categories of Business Auxiliary Service for crushing of ore lumps as well as Cargo Handling Service for transportation of stock. Held that - It is to be noted that the contract is not a service contract simplicitor either for crushing or for transportation of material. It is a composite contract encompassing all the activities listed therein. When the entire scope of the contract is considered, it is evident that this will be covered only within the category of mining which has been included as a separate service w.e.f. 01.06.2007. The Tribunal in the case of Hazaribagh Mining & Engineering P. Ltd. vs. C.C.E., C. & ST, BBSR-I 2016 (12) TMI 1131 - CESTAT, KOLKATA have considered a similar composite mining contract which was made chargeable to service tax under different categories. The Tribunal held that once the contract is a composite contract for the entire activities from site formation to segregation of ores then the same has to be charged as a separate service (Mining Services), which was made chargeable to service tax w.e.f 01.06.2007 only. Vivisecting the composite contract and charging service tax on different components of the contract individually under different services is not justified - demand set aside. Contract with M/s. B.K.Coalfields - Site formation services or not? - Held that - After perusal of all documents, he has concluded that the activities are nothing but mining services which are chargeable to service tax only w.e.f. 01.06.2007 - there is no infirmity in the view taken by the adjudicating authority that the activities carried out under M/s. B.K. Coalfields Ltd contract also will not be liable to vivisected and charged to service tax under individual categories. Appeal dismissed - decided against Revenue.

Summary

Issues Involved:

1. Classification of services under the contracts with M/s. TISCO.
2. Classification of services under the contracts with M/s. B.K. Coalfields Ltd.
3. Applicability of service tax prior to 01.06.2007 for both contracts.

Detailed Analysis:

1. Classification of Services under the Contracts with M/s. TISCO:

The dispute pertains to two contracts executed by the assessee with M/s. TISCO. The contract required the assessee to perform activities such as excavation, transportation, crushing, screening, and transportation of finished products within the mine. The revenue authorities argued that the crushing activity falls under "Business Auxiliary Service" and the transportation of finished products falls under "Cargo Handling Service." The adjudicating authority upheld this view, leading to the demand for service tax under these categories.

However, the Tribunal noted that the contract is a composite one encompassing all activities related to mining. The Tribunal referenced the case of Thriveni Earthmovers Pvt. Ltd. vs. Comm. Of C.Ex. [2009(15) STR 393 (Tri.-Chennai)], which held that such activities within the mining area are covered under "mining of mineral, oil, gas" and cannot be taxed under "Cargo Handling Service" prior to 01.06.2007. The Tribunal emphasized that the contract should be viewed as a whole, and the activities fall under the mining category, which became taxable only from 01.06.2007.

2. Classification of Services under the Contracts with M/s. B.K. Coalfields Ltd.:

The contract with M/s. B.K. Coalfields Ltd. involved excavation, transportation of mined material and overburden, and processing of lumps. The revenue proposed service tax under "Site Formation Services" for drilling, loosening, and excavating, and under "Cargo Handling Service" for transportation to the dump yard. The adjudicating authority, however, dropped the demand, concluding that the activities are part of mining services, which were taxable only from 01.06.2007.

The Tribunal upheld this view, citing several case laws, including Hazaribagh Mining & Engineering P. Ltd. vs. C.C.E., C. & ST, BBSR-I [2017 (49) STR 289(Tri.-Kolkata)], which held that composite contracts for mining activities should be taxed under "Mining Services" from 01.06.2007 and not under individual service categories prior to this date.

3. Applicability of Service Tax Prior to 01.06.2007 for Both Contracts:

The Tribunal consistently held that composite contracts related to mining activities should be taxed under "Mining Services" only from 01.06.2007. This was supported by multiple case laws, including Kanak Khaniz Udyog vs. CCE [2017(52) STR 46 Tri.-Del] and others. The Tribunal rejected the revenue's approach of vivisecting the contracts and taxing individual activities under different service categories before 01.06.2007.

Conclusion:

The Tribunal set aside the demand for service tax in respect of the M/s. TISCO contract, recognizing it as a composite mining contract taxable only from 01.06.2007. Similarly, it upheld the adjudicating authority's decision to drop the demand for service tax for the M/s. B.K. Coalfields Ltd. contract, affirming that the activities fall under mining services taxable from 01.06.2007. Consequently, the appeal filed by the revenue was rejected, and the appeal filed by the assessee was allowed.