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TMI Blog2023 (12) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... .5.07. According to me the valuation against Site formation etc. arrived at by ICWAI does not affect this inference because determination of value of a part of a service in no way affects the character of the service as given under agreements. The agreements do not mention any separate consideration for overburden removal or site formation. In respect of dropping of demand of Rs.2,09,43,980/- - HELD THAT:- Due cognizance given to the certificate issued by the statutory auditor of the company C.Ghatak Co which in effect had completely reconciled the difference of Rs.19,32,74,085/- by which the balance sheet figure exceeds the figure covered under bills raised on mining clients, and on which service tax demand of Rs.2,09,43,980/-has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Site Formation Clearance, Excavation Earth Moving Demolition Services (16.06.2005 to 31.05.2007) Rs.11,64,74,435/- Dropped. 2. Mining Service (c) 2008-09 (difference between Balance Sheet Service Tax Return figures) Rs.2,09,43,980/- Dropped Para 18, p37-38 2. They are also aggrieved by the fact that in respect of Service Tax of Rs.26,01,36,069/-, the adjudicating authority has dropped the proposed penalty under section 78 on the ground that this amount was paid along with interest before issuance of the show cause notice. 3. The learned DR reiterates the Grounds of Appeal and prays ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition of the Site formation etc. Services. However, it is clear from the language/text of the Circular that in no way this inclusive nature would consider services related to mining in it; rather it included all such activities those are needed prior undertaking mining. In fact the Circular remains in corformity with the statute. 14.8.6 In the final decision related to the above case of M.Ramakrishna Reddy Versus Commr. of C. Ex Cus., Tirupathi 2009 (13) S.T.R. 661 (Tri.-Bang.), hon ble Tribunal observed the following :- 10.2 If the above provision is applied, the services rendered would amount to only mining services. As the contract is a comprehensive one for mining, it cannot be vivisected for levying service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s cannot be considered as Site Formation and Clearance, Excavtion and Earth Moving and Demolition Services for the period from 16.6.05 to 31.5.07. According to me the valuation against Site formation etc. arrived at by ICWAI does not affect this inference because determination of value of a part of a service in no way affects the character of the service as given under agreements. The agreements do not mention any separate consideration for overburden removal or site formation. The payments are received by the assessee only on basis of removal of coal only. (B) In respect of dropping of demand of Rs.2,09,43,980/-, he has given the following findings:- 18.1 In the said context, the noticee has placed on record a certificate issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consonance with the Board s Circular No.137/167/2006/CX-4 dated 03/10/2007 read with provisions of Section 73(3) of the said Act, I find the issues of the instant case are squarely covered by such provisions and clarifications in so far as the demand of Rs.26,01,36,069/- is concerned. As a sequel to the above reasons, I am of firm opinion for conclusion of all proceeding in respect of the demand for the aforesaid period against the assessee in terms of Section 73(3) of the Act read with Board s Circular and judgements cited above. In the circumstances, I find no justification for imposing penalties against this amount. [Emphasis supplied] 7. We find that the Adjudicating authority has considered all the factual details and statut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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