9911796707
TMI Blog2023 (5) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... e Formation and Excavation Service . The service tax liability is fastened under the statute, if the assessee is performing any service, which is in conformity with the definition of taxable services itemized in the Finance Act, 1994. It is not the case that the appellants themselves voluntarily obtained the service tax registration under the taxable category of Site Formation and Excavation Service . The show cause notice in these cases have proposed for recovery of the service tax under such taxable entry and the same was subsequently confirmed by the original authority in the impugned orders passed by him. In order to tax under the particular category of service, it is incumbent upon the adjudicating authority to discuss the scope/nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces that particular issue of short payment of tax cannot also be addressed at this juncture. Appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... ioma Industries & Imperial Soda Factory - 1997 (91) E.L.T. 527 (S.C.) has categorically held that a point of law can be raised even before the Hon'ble Supreme Court, even if not raised before the lower appellate authorities. Since, the miscellaneous applications has been filed by the applicants for consideration of the issue concerning "question of law", we are of the considered view that the plea raised in the miscellaneous applications can be considered for a decision on merits, in the interest of justice. Accordingly, miscellaneous applications filed by the applicants are allowed. 2. The issue involved in all these appeals are identical and accordingly, the same are taken up for hearing together and a common order is being passed. 3. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the appellants as per the work order issued M/s. Western Coal Fields Ltd., have been duly examined by the original authority and since upon examination of the scope of work, he has held that the services provided by the appellants are liable to payment of service tax under the taxable entry of 'Site Formation Excavation Service', as the same is in conformity with the statutory provisions and cannot be discussed at this juncture for a decision contrary to the findings recorded therein. 6. Heard both sides and examined the case records. 7. The description of work for performance by the appellant has been clearly spelt out in the work order issued by the service recipient i.e., M/s. Western Coal Fields Limited, Nagpur and the same are e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work undertaken pursuant to the agreement vis-à-vis the true scope and meaning of the definition of that particular taxable service, in order to categorized under the appropriate levy of tax under that particulars heads of service. However, in these cases we find that the description of activities to be undertaken by the appellant as per the work order issued by the service recipient M/s. Western Coal Fields Ltd. have not at all been discussed by the original authority. Since, levy of tax is dependent upon the scope of work, we are of the view that proper analysis is required to be done for ascertaining the correct classification of service for the purpose of levy and collection of the service tax. Since, this particular aspect has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Western Coal Fields Ltd. should fall under the taxable entry of Site Formation Excavation Service and upon determination of such issue, the original authority will address other issues dealt with in the present impugned orders. The eligibility of cenvat credit on capital goods including tippers, admissibility of cenvat credit on account of non-production of invoices and invoices not in the name of appellant should also be examined by the original authority as per the definition provided and on the basis of legal provisions under Cenvat statute. It is made clear that this is open remand and the original authority should consider all other aspects including the limitation aspects raised by the appellants before this Tribunal. Needless to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
