9911796707
TMI Blog2023 (7) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... nd they are not paying service tax. Accordingly, enquiry was initiated and summons were issued in response to which Shri K.N. Rao, Managing Partner of the Appellant appeared and his statement was recorded wherein, inter alia, deposed that they were primarily providing the services of excavation of limestone in the mines, loading and transportation of limestone belonging to the 3 cement units viz., Madras Cements Ltd, Andhra Cements Ltd and Kakatiya Cement and Sugar industries Ltd. They had entered into agreement with the cement companies for the above work. They have not registered themselves with the service tax department and were not paying service tax on the opinion that their activity was outsourcing of mining operations by the cement companies, which was not a specified service and thus does not attract service tax; That the activity undertaken by them was part of the process in the manufacture of cement which was an excisable commodity; That the activity undertaken by them would yield one of the major inputs viz., limestone for the cement units. Appellant had neither charged service tax from the service receivers nor collected any amount towards tax element. Mr. Rao categori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 76, 77 and equal penalty under section 78 of the Act. Being aggrieved, the Appellant is before this Tribunal. 4. Learned Counsel appearing for the Appellant, inter alia, urges that the issue is no longer res integra and the same have been adjudicated in the case of Thriveni Earth Movers Private Limited Vs. CCE, Salem reported at [2000 (915) ST 393]. In the facts of the said case the Assessee has undertaken the activity of loading and transportation of limestone and rejects to crusher respectively in the mining area, during the period August, 2002 to November, 2006 for the cement company. As per agreement Thriveni Earth Movers received Rs. 9/tonne towards loading of limestone/rejects and Rs. 27.50/ tonne towards transportation of the same. From 1st June, 2007 'Mining of Mineral Oil and Gas service' was brought under the levy of service tax. Thereafter only, Revenue had issued Show Cause Notice demanding Tax. This Tribunal- Coordinate Bench took notice that the activity under dispute was undertaken under a contract wherein Thriveni were to operate under supervision of mining officials of Chettinad Cement Corporation. They were subject to the provisions of the Mines Act and mining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining activity and not taxable as Cargo Handing service. 5. Learned Counsel further points out that the ruling has not been modified or buried by the Hon'ble Supreme Court wherein the Appeal of revenue has been dismissed on the ground of limitation. 6. Learned Counsel also relies on the ruling of this bench in M Ramakrishna Reddy Vs. CCE, Tirupathi, wherein the activity of excavation, removal of overburden was held not taxable prior to 1st June, 2007 under other category - being 'Site Formation and Clearance, Excavation and Earth Moving, Demolition service'. It was held that such activities are taxable under Mining service only with effect from 1st June 2007, reported at [2019 (24) GSTL 602]. 7. Learned Counsel also relied on the ruling of the Kolkata bench of this Tribunal in GS Atwal and Co Engineers Pvt Ltd vs CCE, Kolkata, where the assessee claimed that they are engaged in mining services during the period 16th August, 2002 to 31st October, 2006 but had not paid service tax and neither had taken registration till 1st June, 2007, when mining service was introduced as a taxable service. The demand was proposed by Revenue vide Show Cause Notice dated 14th March, 2007 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied on the ruling in the case of CCE vs Gayatri Carriers Pvt Ltd reported at [2013 (32) STR 367] wherein Department held that activity of handling coal prior to 1st June, 2007 was covered under Cargo Handling service and accordingly demanded Service Tax. Admittedly, in the said case, service was provided to South Eastern Coalfield Limited. This Tribunal observed that there is no dispute that the assessee engaged in loading/unloading/handling of coal into tipper trucks and transportation from coal face surface to coal stock yard at Baroud (within mines). Assessee is contesting the levy of service tax under the Cargo Handling service as coal in the case is not cargo. This Tribunal also referred to the Board Circular dated 12th November, 2007 observed that the decision in SB Construction Company and Sainik Mining and Allied Services Ltd were considered by the Tribunal in case of Gangadhar Bulk Movers Pvt Ltd. The decision in the case of Anupama Coal Carriers Pvt Ltd was passed by the Tribunal relying on Sainik Mining and Allied Services Ltd (supra) which was considered by the Tribunal in the case of Gangadhar Bulk Movers Private Limited. Accordingly the Tribunal held that the activi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g is done based on the report given by them. Thus submitted that the work undertaken by them includes excavation also and further stated that without excavation, loading cannot be done. We further find that the learned Commissioner have observed in the Impugned Order that the work order also do not indicate that the stockyard or crusher to which material is transported is within the mine area. The Appellant did not substantiate this contention that the crusher/hopper is within the mine area. They also did not assert that stockyards are within mining area. 11. Considering the facts and circumstances and evidence on record, we find that the primary activity done by the Appellant was mining and the activity of loading and unloading of mineral and dumping the same to the prescribed stockyards/crusher is incidental to mining. Further such activity has been defined and made taxable under the head Mining service with effect from 1st June, 2007. We further find that the said mining activity or service has not been carved out from any existing category. Accordingly, we hold that the activities done by the Appellant are classifiable under the head Mining service which was not taxable prior ..... X X X X Extracts X X X X X X X X Extracts X X X X
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