9911796707
TMI Blog2024 (1) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... basis without any specific bifurcation towards site formation, excavation, over-burden charges, cargo handling charges etc.. Therefore, there are no justification on the part of the Department to arrive at and assume vivisection and bifurcation of the rates, to issue the demand notice. From the show cause notice itself it is seen that for the period till 31.05.2007 they have vivisected the contract and issued the show cause notice under the heading Cargo Handling Service and Site Formation Service and after 01.06.2007 they have no qualms to accept that the same composite service falls under category of Mining Service heading only and demand is made under that heading. Since the Department itself admits that the above carried out by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice and calculated and paid Rs.18,10,214/- as Service Tax and Rs.36,203/- as Education Cess and Rs.18,101/- as SHE Cess. They also paid the interest of Rs.4,35,975/- towards the same. The adjudicating authority has confirmed the entire demand and also appropriated the Service Tax, Education Cess and SHE Cess along with interest paid the appellant. Being aggrieved, the appellants have filed their appeal before the Commissioner(Appeals), who has upheld the Order-in-Original. Being aggrieved, the appellant is before the Tribunal. 2. The Ld.Advocate submits that the work order awarded by the client is for various jobs, involved in the mining activities. He takes us through the work order dated 06.06.2005 and the payment terms wherein it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity on the assesse. In view of these submissions, he submits that the appeal is required to be allowed on merits. 3. The Ld.AR reiterates the detailed findings of the adjudicating authority. He submits that only after detailed investigation and verification of facts, the department came to know that the appellants were not discharging Service Tax burden. Only in view of their investigation the appellant has finally accepted that they are liable to pay Service Tax and they have discharged most of the Service Tax demand in 2010 for the period 01.07.2007 to 18.11.2009. Therefore, he justifies the confirmed demand. 4. We have heard both sides and perused the documents. 5. On going through the contract awarded by the client MCCL on 06.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of C.Ex. Cus Vs. B.K.Thakkar [2008 (9) S.T.R. 542 (Tri.-Kol.)], the Tribunal has held that such vivisection is not permissible. Hence, we allow the Appeal on merits. 7. On going through the Order-in-Appeal we find that the Commissioner(Appeals) in para 9 noted that relevant case laws have been cited by the appellant and has held as under:- 9. I have also gone through the judgments of the higher forums cited by the appellant and observe that in the case of M. Ramkrishna Reddy vs. CCE, Tirupathi (2009) 13 STR 661 (Tri-Bang), the Hon ble CESTAT observed that Site Formtion and Clearance, Excavation and Earthmoving and Demolition services Mining of ores-Removal of overburden is incidental to mining activity Entire activity not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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