9911796707
TMI Blog2024 (3) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... ared that the Appellant is not issuing any consignment note to the service receiver. The services are in the nature of pre-mining activity, that is, transport of waste from mine head to waste dump Yard provided to Nidhi mining Pvt Ltd and others. It further appeared that as the Appellant is not issuing any consignment note, they cannot be considered as a goods transport agency and the service provided by them cannot be classified under GTA service. The activity appeared to be classifiable under the definition of mining service which is defined in section 65 (105)(zzzy) as - any service provided to any person, by any other person in relation to mining of mineral, oil or gas. 3. Thus, the tax liability for the period 2009-10 on the gross receipts was calculated at Rs.1,00,42,500/-. 4. It further appeared that during the period 2010-11, the Appellant have not paid service tax on import of management consultancy service with respect to feasibility study of coal mine (located outside India), payable under reverse charge mechanism. The Appellant had, as per the books of account, incurred expenditure of Rs.54,67,074/- on import of feasibility study report. Accordingly, service tax of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the activity was of transportation which is evident from the findings of the learned Commissioner who has, stated that the appellant had provided service of transportation of waste from mine head to waste dump yard to Nidhi Mining Pvt Ltd. Learned Counsel further argued that the tenure of the agreement between the parties has to be understood for determining the correct classification. He had also asserted that the demand cannot be sustained on the ground of limitation as there is no suppression of facts or willful mis-statement as the appellant had filed ST-3 returns for the period October 2005 to March 2010 and furnished the value of exempted service under appropriate column in ST-3 returns. Further, he submitted that on receipt of similar service with respect to transportation of waste/over burden for a different site, the Show Cause Notice sought to demand tax under Goods Transport Agency services, which demand has been dropped in the impugned order holding the activity to be mining service. Thus it is evident that Revenue is not clear about classification. Thus, a case of suppression cannot be made against the appellant. b) The learned Departmental representative, suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agement or Business Consultant' The learned DR while supporting the impugned order submitted that the expenditure is incurred in connection with the business and would thus fall within the definition of 'Management or Business Consultant service', whereas on the contrary the learned Counsel for the appellant submits that the definition of 'Management or Business Consultant' has been misconceived in the impugned order. b) We have considered the submissions and gone through the said definition. For ease of reference we are reproducing the said definition hereunder: "Management or Business Consultant" means any person, who is engaged in providing any service, either directly or indirectly, in connection with the management of any organisation or business in any manner and includes any person, who renders any advice, consultancy or technical assistance, in relation to financial management, human resources management, marketing management, production management, logistics management, procurement and management of information technology resources or other similar areas of management." c) From a plain reading of aforesaid definition we find that the Commissioner in the impugned ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, vehicles, aircrafts, vessels, etc., are also supplied in the above manner and such activities also fall under the said taxable service. In this regard, a doubt has arisen whether the credit of Excise duty/Additional duty of Customs (commonly known as CVD) paid on such items are available to the provider of such taxable service and if so whether such goods should be considered as 'inputs' or 'capital goods', for the purposes of the Cenvat Credit Rules, 2004. 2. The matter has been examined. It is possible that some of such goods may either fall within the definition of 'capital goods' or may not be covered under the said definition. However, as these goods are primary requirements for providing the above mentioned 'output services' for such service providers, the goods including vehicles, aircrafts, vessels, etc., are in the nature of 'inputs'. It is emphasized here that this clarification is valid only when the output service is in the nature of service defined under the provisions of Section 65(105)(zzzzj) of the Finance Act, 1994 and the goods in question are the tangible goods supplied during the course of providing the taxable service" b) We find the appellant in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
