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TMI Blog2017 (3) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... f the sub-clauses of BAS until its amendment w.e.f 16.06.2005. After the said amendment, the activity can be brought within the term of “processing” and hence, liable to Service Tax under BAS. Consequently, there can be no demand for Service Tax prior to this date. Transportation of coal - consideration received from BALCO - whether comes under BAS or not? - Held that: - In the definition of BAS, any service provided to a client in relation to the “Business Auxiliary Service” is covered within the definition. If the crushing of coal is considered as the activity covered under BAS, transportation of coal for such purpose would also be included since it is intimately connected with crushing. In any case, the contract for activity includes bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptive power plant at its Korba Aluminum Complex, since they did not have facilities for transportation, handling and storage of coal etc. Clause 3 of the agreement requires the appellant to carry out the following services: i. Transportation of coal from Gevra silo loading point up to Korba STPS unloading point using existing MGR system. ii. For coal crushing and conveying using existing coal handling plant facilities. iii. Supply of the clarified water and DM water to BCCP using pre-treatment and DM plants along with associated pumping and piping facilities. iv. Supply of raw and drinking water. v. Services for township infrastructure for drinking water, electricity, sewerage, drainage and shopping facilities for BCCP employees. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of ₹ 145/- per MT under "Business Auxiliary Service", they have contended that the contract with NTPC is for crushing coal and this activity is not covered under the scope of "Business Auxiliary Service" during the period September, 2004 to June, 2005. During this period, "Business Auxiliary Service" (BAS) was applicable only for production of goods on behalf of the client. The word "Processing" was included in "BAS" only after the above period. Since, the activity of crushing of coal does not amount to production of goods on behalf of the client, there can be no Service Tax liability. ii. The impugned order has gone beyond the scope of SCN. Whereas the Show Cause Notice has made generalized allegation that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived for the activities carried out at BALCO. They have excluded an amount of ₹ 30/- per MT from payment of Service Tax without any basis. It can only be an afterthought. The non-payment of service tax would have gone completely unnoticed but for the detection of the same by the audit party. Accordingly, she prayed that the demand may be upheld. 7. Heard both sides and perused the records. The appellant's agreement with BALCO was for carrying out the activities of transportation of coal from one point to another within the factory and further for carrying out the process of crushing of coal for both the activities together. The agreement specified, in Clause 12 B1, a payment of ₹ 175/- per MT for these activities. We note that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as outsourced the activity of movement of coal within its plant and undertaking crushing thereof to the appellant for want of such facilities within their captive power generating plant. The appellant contented that the activity of crushing of coal is in the nature of processing of goods, which were brought within the Section 65(19) only from 16.06.2005. In serial no. (v) above the words by "Production" has been replaced by "Production or Processing of goods". In the light of the amendment as above, the submission of the appellant is that the activity carried out by them can at best be covered within the definition only w.e.f. 16.06.2005; for the period prior to this date and their activity is not covered by any of the sub-clauses of BAS. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has claimed that the Show Cause Notice is time barred. Since, the same has been issued more than one year from the date in which the appellant intimated the audit party vide their letter dated 08.12.2007 giving the details of the activity undertaken by them for BALCO. Hon'ble Gujarat High Court in the case of Neminath Fabrics (P) Ltd vs. Commissioner of Central Excise, Surat-I 2010 (256) ELT 369 (Gujarat) has clearly held that date of knowledge was of no significance. The Hon'ble Court has held that once the suppression of facts is established, then the Show Cause Notice may be issued within the extended period of time provided. The Hon'ble Supreme Court has held in the case of Mehta and Company reported in 2011 TIOL 17-SC-CX that Show ..... X X X X Extracts X X X X X X X X Extracts X X X X
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