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TMI Blog2013 (11) TMI 1452X X X X Extracts X X X X X X X X Extracts X X X X ..... ded the services of excavation and removal of rock (O/B rock / secondary ore and mining ore) at Jhamarkotra Rock Phosphate Mines of M/s. Rajasthan State Mines & Minerals Ltd. (RSMML) in terms of letter of intent dated 21.12.2003 and had not paid the service tax on these services. Investigation was taken up by the Department with reference to Contract Reference Nos. RSMM/CO/GCM(C)Cont.24/2004/74, dated 18.05.2005, RSMM/CO/GCM(C) Cont.12/2006-07/528, dated 13.10.2006 and RSMM/Phos/Tender/Mining/1/2003/5657, dated 21.12.2003 and it was found that appellants are paying service tax on the activity of excavation and removal of O/B waste in respect of contract dated 18.05.2005 and 13.10.2006 but did not pay service tax in respect of contract dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended period cannot be invoked and consequently penalty is also not imposable on them. He relied on the decisions of Tribunal in case of CCE vs. Vijay Leasing Company reported in 2011 (22) STR 553 (Tri.-Bang.) Ramakrishna Reddy vs. CCE reported in 2009 (13) STR 661 (Tri.-Bang.) in support of his contention. 4. Shri Sanjay Jain, Ld. Departmental Representative appearing for Revenue submits that the appellants are receiving payment as per contract separately for activity of site formation, excavation and clearance and therefore, it is not a composite contract and the Commissioner has rightly demanded the service tax on this activity under Section 65 (97a) of the Act. He submits that the decision cited by the appellants is distinguishable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcavation and removal of O/B waste and mining of ore. We also note that there is only one contract with the appellants showing the scope of work as excavation and removal of O/B waste and mining of ore. This activity starts from excavation and ends at mining of ore. We find that this is a composite activity and cannot be split into two separate parts for levy of service tax. We are supported in taking this view by the decision of Tribunal in case of M. Ramakrishna Reddy vs. CCE reported in 2009 (13) STR 661 (Tri.-Bang.) wherein it was held that removal of over burden and excavation of ore is undertaken for mining of ores only and activity does not fall under Site Formation and Excavation and Earth moving and Demolition service. Following th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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