9911796707
TMI Blog2013 (3) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... were not taxable services during the relevant period. The Revenue is trying to divide the contract which is not the case in the show-cause notice. - Therefore, division contract cannot be permitted at this stage and the grounds taken by the Revenue in their appeal are beyond the purview of show-cause notice. - Decided in favor of assessee. - ST/146/2008 - A-293/KOL/2011 - Dated:- 22-9-2011 - Shri B.S.V. Murthy and Ashok Jindal, JJ. Shri S. Mishra, Addl. Commissioner, for the Appellant. Shri Kartik Kurmy and Anand Jaluka, Advocates, for the Respondent. ORDER The Revenue has filed this appeal against the impugned order dropping the show-cause notice dated 24-5-07. The respondents have also filed the cross objection. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue is in appeal. 3. Shri S. Mishra, ld. Addl. Commr. (AR) appeared on behalf of the Revenue and submitted that as observed by the Committee of Commissioners that the agreement entered by the respondent is for several activities and in those activities, the respondents are engaged in the activities of cargo handling as well as the goods transportation. Therefore, the contention of the respondents that they are not liable to pay service tax, does not sustain. As the respondents are engaged in the activities of taxable service and they have not divided the quantum of their activity, therefore, they are liable to pay service tax on the whole amount, accordingly, impugned order is to be set aside. 4. On the other hand, Shri Kartik Kurmy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision does not vitiate the show-cause notice, does not sustainable. Hence, the appeal is liable to be rejected. 5. Heard both sides. 6. On careful consideration of the submissions of both sides, we find that in the show-cause notice or during investigation, it is alleged against the respondents that they are engaged in the activities mentioned above under a composite contract and the contract is not divisible and in the facts and circumstances of the case, the respondents activity is classified under Business Auxiliary Service. We have gone through the activities undertaken by the respondents and from no corner of the stretch, this activity falls under the category of Business Auxiliary Service. The more appropriate entry is mining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service which gives the essential character. There is a need to determine whether a given transaction is the one containing major and ancillary elements or the one containing multiple and separate major elements. In the case of a transaction containing a major and ancillary elements, classification is to be determined based on the essential features or the dominant element of the transaction. A supply which comprises a single supply from an economic point of view should not be artificially split. The method of charging or invoicing does not in itself determine whether the service provided is a single service or multiple services. Single price normally suggests a single supply though not decisive. The real nature and substance of the transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if they consisted of a service which gives them the essential character, insofar as this criterion is applicable; 8. From the above, guideline laid down by the Board s Circular and as per the provision of Section 65A, the classification of service under composite contract is appropriately classifiable under mining service. The said mining services were not taxable services during the relevant period. By way of this, the Revenue is trying to divide the contract which is not the case in the show-cause notice. Therefore, division contract cannot be permitted at this stage and the grounds taken by the Revenue in their appeal are beyond the purview of show-cause notice. In view of the above observations, we do not find any infirmity in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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