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TMI Blog2009 (7) TMI 354X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered prior to 16-6-2005 and remanded the matter to the adjudicating authority to determine the exact tax liability - We observe that the original authority found that respondent had contravened provisions of law but were not guilty of fraud or collusion or willful misstatement with ma/a fide intention to evade payment of service tax – impugned order setting aside penalty under Section 76 and 77, is justified - We find that in the instant Case, the activity undertaken by the appellants is essentially Mining Service which became taxable with effect from 1-6-2007. Therefore the appellants are not liable to pay service tax on the impugned activity under the category “Business Auxiliary Service” during material period – Revision order impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period 16-6-2005 to 31-12-2005, the respondents had provided Business Auxiliary services to M/s. Mukand Ltd. by undertaking the above activity, without following the statutory formalities including payment of service tax and education cess due. He appropriated an amount of Rs. 22,27,542/- towards the above liability and applicable interest found due from the respondents and appropriated the same from the amount deposited by the respondents before the issue of Show Cause Notice. He also imposed penalty of Rs. 100/- per day under Section 76 of the Finance Act, 1994 (the Act) for delay in the payment of the balance amount due and penalty of Rs. 500/- under Section 77 of the Act. Vide the impugned order, the first appellate authority found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of C. Ex Customs, Vadodara [2007 (212) E.L.T. 41 (Tri.-Mum.) = 2006-TIOL-1417-CESTAT-MUM] The Revenue has canvassed the proposition that the liability to penalty is not contingent on the timing of the payment of the duty evaded. The ratio of the judicial authorities stated above is also to the same effect. The respondent has submitted that the activity they had undertaken was appropriately classifiable under 'Mining Service' which was brought under tax net for the first time on 1-6-2007. Therefore the respondents were not liable to pay service tax under Business Auxiliary Service for the same activity prior to 1-6-2007. It is also submitted that the Revenue had relied on the various case laws which dealt with the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of fraud or collusion or willful mis-statement, etc. with an intention to evade the service tax. Accordingly he refrained from imposing any penalty on the respondents under Section 78 of the Act invoking provisions of Section 80 of the Act. Obviously the respondents were not aware of their liability and they had not registered with the Department as a provider of service and consequently there was delay in payment of service tax. In such circumstances, we find, the respondents were entitled to relief under Section 80 of the Act as regards the penalties under Section 76 and 77 of the Act. This relief was granted by the Commissioner (Appeals) in the impugned order. In vacating the penalties, the Commissioner (Appeals) relied on the several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue's appeal is rejected. Appeal No. 488/2008 7. This appeal has been filed by SVM. The appellant challenges imposition of penalty under Section 78 of the Act, passed in an order revising the order of the original authority involved in the Appeal No. 255/2007, filed by the Revenue. The appellant submitted that the activity undertaken by them during the material period was appropriately classifiable under Mining service which was brought under tax net on 1-6-2007 much after the material period. They relied on the decision of the Tribunal in the case of M. Ramakrishna Reddy v. CCE CC [2009 (13) SIR. 661 (Tri.-Bang. = (2009) 27 (1) ITPJ 535 (CESTAT-Bang.)] in support of the above claim. They also relied on the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) at mines which included blasts hole drilling, blasting, loading the same into dumpers/tippers and transportation to the stock yard specified by the Corporation and stacking them in the specified stock yards of the Corporation, sizing/breaking to less than 60 Cms (24 ) size, avoiding generation of high fines in the process and also the allied works as per tender. The lead for dumping of the ROM ranged from 2.5 Km to 3 Km (one way). In that case, the demand raised by the Revenue on the appellants under the category site formation and clearance, excavation and earthmoving and demolition seroices was vacated by the Tribunal finding that essential character of the work undertaken by the assessee was mining or winning of minerals. The mining ..... X X X X Extracts X X X X X X X X Extracts X X X X
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