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TMI Blog2017 (9) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... Services - there is no justification to upheld the demand of service tax under the category of Cargo Handling Services for the work of transportation of iron ore carried out within the mining area. Removal of over burden carried out by the appellant - whether classified under the category site formation services for the period prior to 01.06.2007 when the category of mining services was introduced separately? - CBEC Circular dated 12.11.2007 - Held that: - Tribunal in the case of M.Ramakrishna Reddy vs. Commr. Of C.Ex. & Cus, Tirupathi [2008 (10) TMI 115 - CESTAT, BANGALORE] has held that removal of overburden and excavate of ore undertaken as per mining contract cannot be covered under the category of Site formation - Since the period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. With the above background we heard Shri K.Kurmi, Advocate for the appellant as well as Shri D.Halder, AC(AR) for the department . 4. It is the submission of the Ld. Counsel for the appellant that the contract entered into with the client separately indicatoed charges for raising Iron Ore Lumps, Removal of Over Burden /mining rejects and Transportation of Iron Ore Lumps, but the contract is composite in nature and is executed for the purposes of mining of iron ore. The mining of mineral service has been included in the Finance Act under Section 65 (105)(zzzy) w.e.f. 01.06.2007. Hence, it is his submission that the services rendered will be liable to service tax only w.e.f. 01.06.2007. The ld. Counsel further submitted that the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent transportation of the coal within the mining area, does not come under the purview of cargo handing service. The dominant activities undertaken by the appellants under the contract in question are primarily the movement of coal within mining area and transfer of coal from the coal face to the tippers, if at all, includes loading and unloading which are merely incidental. Cargo in commercial parlance has a definite connotation which is carried as freight in a ship, plane, rail or truck and the activities undertaken by the appellants in terms of the contracts on behalf of M/s. MCL to move coal within mining area do not fall in the category of cargo handling service. Moreover, the activities undertaken are principally the transportati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.Ramakrishna Reddy vs. Commr. Of C.Ex. Cus, Tirupathi (supra) the Commissioner has held that removal of overburden and excavate of ore undertaken as per mining contract cannot be covered under the category of Site formation. The Tribunal has observed as under: 10.1 From the above, it is very clear that the salient feature of the services rendered by the appellant is mining. In other words, the appellant is expected not only to remove the overburden but also to excavate the Barytes Ore. We cannot say that the appellant is not undertaking site formation work, but site formation work undertaken by the appellant is incidental to the mining activity. To put it in different words, the essential character of the work undertaken by the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to Site Formation in the light of the decision of the Tribunal in the case of Daelim Industrial Company v. CCE, Vadodara [2006 (3) S.T.R. 124 (Tri.-Del.) = 2003 (155) E.L.T. 457 (Tri.-Del.)] upheld by the Apex Court [2007 (5) S.T.R. J99 (S.C.) = 2004 (170) E.L.T. A181 (S.C.)]. Consequently, we hold that the services rendered by the appellant are classifiable only under the category of Mining Services and therefore they would not be liable to service tax prior to 1-6-2007. In the light of the above finding, there is no justification for imposition of any penalty. Hence, we allow the appeal with consequential relief. 8. Since the period of duty in the present case is prior to 01.06.2007, we hold that the demand of service tax under t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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