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TMI Blog2015 (9) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... against the assessee. Extended period of limitation and levy of penalty - Held that:- since the issue is that of interpretation of law and conflicting views are expressed by different judicial fora, therefore, penal provisions are not warranted in the present case and it is a fit case for invoking Section 80 of the Finance Act, 1994. - extended period of limitation is neither invocable, nor penalty is imposable on the assessee/appellant. - Decided partly in favor of assessee. - ST/172 & 157/2008 - Final Order Nos. A-75658-75659/KOL/2014 - Dated:- 15-7-2014 - D.M. Misra, Member (J) and I.P. Lal, Member (T) Shri Jagabandhu Sahoo, Advocate, for the Appellant. Shri S. Misra, Addl. Commr. (AR), for the Respondent. ORDER The assessee as well as the Revenue are in appeal against the Order-in-Original No. Commr./BBSR-I/ST-12/2008, dated 30-6-2008 passed by the Commissioner of Customs, Central Excise Service Tax, BBSR-I. 2. Briefly stated the facts of the case are that the Appellant M/s. Orissa Stevedors Ltd. had rendered services to M/s. Orissa Mining Development Corporation (OMDC) against six Agreements/Work Orders between the period October, 2004 to Octobe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order No. OMD/T-5/917, dated 18-3-2005, the ld. Commissioner has rightly observed that the assessee had undertaken the activity of production or processing of goods for and on behalf of the client and accordingly, correctly classified their services under the category of Business Auxiliary Service. Regarding the activities/services against work order Nos. OMD/T-5/1782, dated 26-5-2005, OMD/T-5/749, dated 25-2-2006 and OMD/T-5/1813, dated 13-5-2006, the ld. AR for the Revenue has placed reliance on the judgment of this Tribunal in the cases of Commissioner of Central Excise v. Gayatri Carriers (Pvt.) Ltd. - 2013 (32) S.T.R. 367 (Tri.-Del.). Jai Jawan Coal Carriers Pvt. Ltd. v. Commr. of S. Tax, New Delhi-2014-TIOL-727-CESTAT-DEL = 2015 (37) S.T.R. 509 (Tri.-Del.). It is his submission that the Tribunal after discussing the case laws on the subject had observed that the activity of loading of coal into the tippers and subsequent unloading in the Railway wagons for its transportation is clearly identifiable as separate rates are prescribed for the same, hence these services are chargeable to Service Tax under Section 65(105)(zr) read with Section 65(23) of the Finance Act, 1994 i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... processing of goods for or on behalf of the client and classified under the category of business auxiliary service . It is a common fact that excavation of iron ore is nothing but digging out of the ore from the earth s bed and by any yardstick this cannot be construed as any production or processing as no raw material go into the process. In this context, I would like to place reliance on the Hon ble Supreme Court s decision in the case of Commissioner of Central Excise, Customs, Bhubaneswar-I v. Tata Iron Steel Co. Ltd. - 2003 (154) E.L.T. 343 (S.C.) wherein the Hon ble Court had held that raising of coal from the ground in the collieries would not amount to manufacture or production of coal. On the other hand the activity of raising or excavation has to be held as pure mining activity which has become taxable w.e.f. 1-6-2007 under the category mining service . 5.11 I am fortified in my view by the clarification issued by C.B.E. C. vide letter F. No. 232/2/2006-CX-4, dated 12-11-2007 wherein it has been clarified that coal cutting or mineral extraction and lifting them up to pithed are essential integral processes and are part of mining operation. Mining activity has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to railway siding at Barbil which include the activity of loading and unloading, transportation and the lump sum charge was @ ₹ 135/- per MT. The contention of the appellant is that the services rendered by the appellant are only relate to transportation of iron ore within the Mining area and hence cannot fall within the scope of Cargo Handling services . On the other hand the ld. adjudicating authority relying on the decision of Gajanand Agarwal v. CCE, Kolkata - 2009 (13) S.T.R. 138 (Tri.-Kolkata) has held that the activities are not mere transportation but in essence handling of the cargo, hence fall under the category of cargo handling service. We find that this Tribunal in Gayatri Carriers Pvt. Ltd. which was later followed in Jai Jawan Coal Carriers Pvt. Ltd. case (supra) after analyzing the case laws on the subject more or less under similar circumstances has observed that the activities of shifting, loading, unloading of ores with the help of tippers, trucks, etc., into railway wagons are cargo handling service. Therefore, in view of these decisions of this Tribunal which are squarely applicable to the facts of the present case, we agree with the finding recorded by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld survive only for the normal limitation period which has to be quantified by the original adjudicating authority. As regards, the penalty on the appellant under Sections 77 and 78, since as discussed above, during the period of dispute there were conflicting decisions by the Tribunal with regards to taxability of the appellants activity, it has to be held as the non-payment of Service Tax by the appellant was due to bona fide belief on the part of the appellant that their activity is not taxable. Therefore in view the provisions of Section 80 of the Finance Act, 1994, the penalty under Sections 77 and 78 would have to be waived. Ordered accordingly. 6.5 Following the same, we are also of the view that extended period of limitation is neither invocable, nor penalty is imposable on the assessee/appellant. For the limited purpose of ascertaining the liability of assessee/appellant with respect to the demand for the normal period, we remand the matter to the adjudicating authority. The assessee/appellant s appeal is partly allowed to the extent above and the Revenue s appeal is rejected. (Operative part of the order already pronounced in the court) - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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