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TMI Blog2013 (11) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... lled was much less than the cost of services provided and the back to back agreements entered into between the parties was used for suppressing value of services. However, we note that the demand is made for the entire expenditure incurred ignoring the fact that part of the expenditure incurred is realized through bills raised for mining services and service tax on such amounts are already paid - Following decision of CCE Hyderabad Vs Vijay Leasing Company [2010 (12) TMI 782 - CESTAT, BANGALORE] - Partial stay granted. - ST/315/2012 - MISC ORDER No.42617/2013 - Dated:- 4-11-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant: Ms. Radhika Chandrashekar, Advocate For the Respondent: Shri M. Rammohan Rao, DC (AR) O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ebit notes raised to the clients. 4. Because of these issues, Revenue felt that service tax was short paid by the applicant during the period Jun 05 to Sep 08. A Show Cause Notice was issued and adjudicated resulting in confirmation of service tax amount of Rs.2,04,84,245/- for the period June 05 to May 07 under the category of Site Formation Service and Rs.9,38,97,251/- under the category of Mining Service for the period 01-06-07 to September 2008. Adjudication also has resulted in denial of Cenvat credit for a small amount of Rs.1,26,002/-. Further there is demand for interest. Penalties also are imposed. Aggrieved by the adjudication order, the applicant has filed this appeal in the Tribunal along with application for waiver of pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of over burden of earth was done for providing mining activity only and a contract for mining cannot be split into two contracts for site formation and mining and service tax cannot be charged prior to 01-06-07. In this regard, she relies on the decision in the case of CCE Hyderabad Vs Vijay Leasing Company -2011 (22) STR 553 (Tri.-Bang.). 8. She further pleads that the applicant is facing financial difficulties because the applicant has not been able to do any mining for the last 2-3 years and there are losses as per the balance sheet. 9. Opposing the prayer of Ld. AR for Revenue submits that the facts of the case which demonstrate undervaluation of service are clearly stated in paras 3, 4 5 of the adjudication order. It is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch services prior to 01-06-2007. 11. In the case of payment of service tax on receipt basis, Ld. AR points out that in a situation where there is receipt of consideration other than through money, it is easy to suppress payments in cash and therefore receipt in cash alone is not sufficient to arrive at the consideration received. 12. In the matter of financial hardship pleaded, the Ld A. R. submits that such loss is recovered by billing services at less than cost as already explained and also on account of sale of ship which is a different activity of the appellant. He argues that not much credence can be given to this plea. 13. We have considered the submissions on both sides. Prima facie, we are in agreement with Ld. AR for that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning services and service tax on such amounts are already paid. 14. In the matter of removal of overburden of earth in the course of providing mining services, we would like adopt the decision in the case of Vijay Leasing Company (supra). 15. Considering the overall facts and circumstances of the case and also the financial hardships pleaded, we order the applicant to make a pre-deposit of Rs.2,50,00,000/- (Rupees Two crore fifty lakhs only) within a period of 8 weeks and report compliance on 09-01-2014. Subject to such compliance, pre-deposit of balance dues arising from the impugned order shall remain waived and its collection stayed during pendency of the appeal. (Dictated and pronounced in open court) - - TaxTMI - TMITax - Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X
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