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TMI Blog2013 (10) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... machineries for excavation, crushing of lime stone and transportation (loading/unloading) of ROM & crushed lime stone. According to the Department these activities fall under the category of "Cargo Handling Services" with effect from 16.08.2002 and under "Business Auxiliary Services" with effect from 10.09.2004. On scrutiny of their records and the ledgers it was observed that appellants received an amount of Rs.17 ,96,59,771 /- as consideration during the period 01.02.2003 to 31.03.2007. Accordingly it was contended by the Department that appellants have provided the services of loading/un-loading/sorting/staking/dumping/crushing of Limestone to M/s RSMML falling under the category of "Cargo Handling Service" for the period 01.02.2003 to 09.09.2004 and with effect from 10.09.2004 under Business Auxiliary Service. Accordingly a Show Cause Notice dated 17.03.2008 was issued to the appellants demanding the service tax of Rs.1 ,89,44,579 /- along with interest and also for imposition of penalty under various provision of the Finance Act. The appellants contested the Show Cause Notice and after due process the case was adjudicated by the Commissioner vide impugned order who confirmed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with effect from 16.06.2005 under which this clause by the definition was amended to read as any services in relation to production or processing of the goods on the behalf of the client. He submits that with effect from 16.06.2005 the appellants are paying the service tax under category of Business Auxiliary Service and there is no dispute about this fact. He also submits that a Show Cause Notice in this case was issued on 17.03.2008 demanding duty from 01.02.2003 to 31.03.2007 and as such is hit by time limitation and since there was no malafide intention to evade service tax, they are not liable to any penalties in respect of these transactions. 5. Ld DR appearing for the Revenue submits that since the agreement between the RSSML and appellants clearly refers to the transportation/loading/un-loading of the goods it is clearly covered under Cargo Handling Services and since the appellants did not provide the separate value in relation to this activity of Cargo Handling Service department has raised the demand on entire value as per the agreement. With effect from 10.09.2004 the appellants are subsequently covered under the definition of Business Auxiliary Service under the cat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d necessary. B. Mechanised pre-Crusher screening of ROM Limestone dumped as per Clause 1(i)(A) herein above & then crushing of oversize (i.e. + 80 mm size) ROM Limestone screened out at pre-Crusher screening stage, (the crushing may be done either in one stage or in multi stages) and then screening of crushed limestone and pre-screened limestone in the Crushing & Screening plant of the Co-operative society (to be installed by the Co-operative society at its cost & expenses within the area earmarked in the plans enclosed) at Corporation's Sanu Limestone Mines, Distt . Jaisalmer ; so as to produce crushed and screened limestone gitties having CaO 53%, (Minimum) SiO2 1.5% (Maximum) in following sizes: (i) (+) 40 mm to (-) 80 mm (ii) (+) 30 mm to (-) 50 mm NOTE: In addition to main limestone products in the sizes specified above, the Co-operative Society will also be required to screen and segregate limestone fines (i.e. crushed limestone of (-) 30 mm fraction in two by products in the sized fractions, i.e. into (-) 30 mm to (+) 20 mm and (-) 20 mm. If the Co-operative society so desires, it may arrange pre-screening of (-) 30 mm fractions of ROM at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) To produce crushed and screened limestone gitties C (i) Transportation and dumping of (-) 30 mm fractions of ROM limestone separated at pre-crusher screening stage, and (-) 20 mm fraction of crushed limestone from the crusher/mining face to rejection/dump disposal site. (ii) Loading of these rejects at crusher plant site/mining face. (iii) Unloading/dozing/ levelling of the same at rejects dump yards. D (i) Transportation and Stacking of limestone by products specified as and when required 8. We also note that as per the agreement RSMDC have appointed the appellants as its contractor for work of hiring of Machines, Equipments Crushing and Screening Plant and other Services from the appellants for production of Low Silica Limestone Gitties. 9. We note that final objective of entering into agreement with the appellants is for production of limestone gitties and in the process of producing these gitties, appellants are performing some activities of loading/unload ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; (i) Promotion or marketing or sale of goods produced or provided by or belonging to the client; or (ii) Promotion or marketing of service provided by the client; or (iii) Any customer care service provided on behalf of the client; or (iv) Procurement of goods or services, which are inputs for the client; or (v) Production of goods on behalf of the client; or (vi) Provision of service on behalf of the client; or (vii) A service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing, issue or collection or recovery of cheques, payments maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any information technology service and any activity that amounts to "manufacture" within the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f services, for a consideration, and includes any person who, while acting on behalf of another person- (i) Deals with goods or services or documents of title to such goods or services; or (ii) Collects payment of sale price of such goods or services; or (iii) Guarantees for collection or payment for such goods or services; or (iv) Undertakes any activities relating to such sale or purchase of such goods or services; (b) "information technology service" means any service in relation to designing, developing or maintaining of computer software, or computerised data processing or system networking, or any other service primarily in relation to operation of computer systems; 13. The Commissioner in the impugned order has held that appellants are producing the goods on behalf of the client and are covered under clause V of the definition of Business Auxiliary Service under Section 65 (19) of the Act. 14. We have already enumerated the activities of the appellants in the whole process right from mine stage to formation of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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