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TMI Blog2023 (9) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Order in Original and rejected the appeal. The activity of collection, cleaning, segregation and stacking of blasted raw magnesite is provided in relation to mining. The activities undertaken by the appellant are a part of the mining operations and are more appropriately classified as a Mining Service . Mining activity has been made taxable by legislation with effect from 1.6.2007 only. Prior to this date, such activities, being part of mining operations, were not subjected to service tax. The period of demand in this case is from 6.10.2006 to 11.6.2007, therefore, no service tax is leviable on such activities for a major part of the impugned period. Thus, the activity of collection, cleaning, segregation and stacking of bla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding service tax of Rs.1,86,514/- with interest and also proposed to impose penalties. After due process of law, the original authority vide Order in Original dated 29.9.2011 confirmed the demand of service tax with interest and also imposed penalty of Rs.3,73,028/- under section 78 and Rs.5,000/- under Sec. 77. Aggrieved against the Order in Original, the appellant preferred appeal before Commissioner of Central Excise (Appeals) who vide the impugned order rejected the appeal filed by the appellant and upheld the adjudication order. Hence the appellant is before the Tribunal. 3. No cross-objections have been filed by the respondent-department. 4. We have heard learned counsel Ms. Nivedita Mehta and Ms. R. Rekha for the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant and the appeal is therefore liable to be allowed with consequential relief. 6. The learned AR Shri N. Satyanarayanan reiterated the findings in the impugned order. 7. We have heard both sides and perused the records and the case laws cited. The issue to be decided is whether the service of segregation of magnesite is classifiable under business auxiliary service under section 65(105)(zzb) of the Finance Act, 1994 or under mining service classifiable under section 65(105)(zzzy) of the Finance Act, 1994. We find that the impugned order had found that the activity is equally classifiable under both the services and as per section 65A of the Finance act 1994, the activity under the sub-clauses which occurs first among the sub-cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghtly relied upon the decision in the case of M/s. Aryan Energy Pvt. Ltd. Vs Commissioner of Customs Central Excise, Hyderabad-I repo in 2009 (13) S.T.R.42 (Tri.-Bang.) Learned counsel also relies on the decision in the case of Union of India Vs M/s. Spectrum Coal Power Ltd., reported in 2016 (41) S.T.R.592 (Chattisgarh). 4. Heard both sides and we have gone through the records. 5. The issue whether the activities of cleaning, segregation and stacking of blasted raw magnesite would fall within the meaning of service or Business Auxiliary Services during the disputed period has been analysed in the decisions relied upon by the learned counsel for the respondents. The Commissioner (Appeals) has applied the decision in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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