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TMI Blog2023 (3) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation - suppression of facts or not - HELD THAT:- It is undisputed that the appellant provides wireline logging, perforation and data processing services to ONGC and OIL. The appellant has been paying service tax on these three services from 1.6.2007 under the head mining services and the department has not disputed this classification of the service. Once the department accepted that these are mining services , it cannot, simultaneously, classify them under TTA services. Unless the department can establish that the appellant was wrong in classifying these services under mining services and the department itself was equally wrong in accepting their classification under mining services , the department cannot classify the servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant : Shri B.L. Narasimhan, Advocate, Ms. Neha Choudhary, Advocate Present for the Respondent: Shri Ravi Kapoor authorized representative for the Revenue ORDER M/s. HLS Asia Ltd. [Appellant], a registered provider of services, has filed this appeal with a prayer to set aside the Order-in-Original [Impugned order] dated 28.9.2012 passed by the Commissioner Service Tax, Delhi demanding Service tax of Rs. 10,89,40,842 for the period 10.9.2004 to 31.3.2008 along with interest and imposing penalties under sections 76,77 and 78. The operative part of the order-in-original is as follows: (i) I confirm the demand of service tax amounting to Rs. 10,65,92,892/- (Rupees Ten Crore Sixty Five Lac Ninety Two Thousand Eight Hundre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Service Tax Credit Rules, 2002. In view of first and second proviso to Section 78, if the amount as determined above along with the interest payable thereon, is paid within thirty days from the date of communication of this order, the amount of penalty payable under Section 78 shall be 25% of the amount so determined. The benefit of reduced penalty shall be available only if penalty so determined is also deposited within 30 days of the communication of this order . 2. The appellant provides wireline logging and perforation services to Oil and Natural Gas Commission [ONGC] and Oil India Ltd. [OIL] and data processing services to OIL under agreements. ONGC and OIL drill the earth for petroleum and for this operation, the characteristi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Range Office that the appellant had not been discharging its full service tax liability under TTA and demanding service tax for the period 10.9.2004 to 31.3.2008 invoking extended period of limitation which culminated in the impugned order. 7. Learned counsel for the appellant contests the impugned order on merits and also on limitation. 8. On merits, it is the submission of the learned counsel that once it is undisputed that from 1.6.2007, the services rendered by the appellant fall under mining services , they cannot be classified under any other category prior to that date. Even otherwise, the appellant is not testing anything but is only taking measurements and supplying them to its clients and in case of OIL, it was also pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services and the department has not disputed this classification of the service. Once the department accepted that these are mining services , it cannot, simultaneously, classify them under TTA services. Unless the department can establish that the appellant was wrong in classifying these services under mining services and the department itself was equally wrong in accepting their classification under mining services , the department cannot classify the services under any other head, including TTA. We do not find anything in the impugned order explaining why the department and the appellant were both wrong in classifying them as mining services . Therefore, the demand cannot be sustained on merits. 13. As far as the limitation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the tax in accordance with the provisions of this Chapter or rules made thereunder, Section 72 requires the Central Excise officer to make Best judgment assessment and for this purpose, require documents, records, etc. to be produced. 15. Thus, the scheme in Finance Act, 1994 is that if the assessee does not self-assess tax correctly, the remedy against it is the Best Judgment Assessment under section 72. This provision is similar to the provision for re-assessment under Section 17 (4) of the Customs Act, 1962. The Commissioner imagined that wrong self-assessment by an assessee would amount to deliberate mis-declaration and suppression of facts with intent to evade. As per the Finance Act, 1994, if the assessee wrongly self-assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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