9911796707
TMI Blog2024 (4) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner decided five issues in favour of the assessee. 2. The present appeal is limited to the issue, where it is held that process of washing of coal is not taxable under the "Business Auxiliary Services" under sub-clause (v) of Clause 19 of Section 65 read with Section 65(105)(zzb) of the Finance Act, 1994 during the period 16.06.2005 to 31.03.2007. 3. The respondent is engaged in the process of washing of raw coal on behalf of their clients. 4. The activity of beneficiation or washing of coal were made liable to service tax w.e.f. 1.6.2007 as defined in Section 65(105)(zzzy), which reads as :- "65(105) "taxable service" means any service provided or to be provided ........ (zzzy) to any person, by any other person in relation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Benefications Pvt. Ltd. (supra) have consistently held that the activity of beneficiation of coal by the assessee is part of mining activity and, therefore, would be liable to service tax only w.e.f. 1.6.2007 and once it is established that the activity is mining, it cannot be taxed under the "Business Auxiliary Service" for the period prior to 1.6.2007. The observations of the Tribunal in the earlier round of litigation of the respondent Aryan Coal Benefications (supra) observed as under:- "2. The said appeal was heard along with the appeal of M/s. Spectrum Coal wherein an identical issue was involved in Tribunal's vide its order No.ST/A/521/12 dated 5-7-2012 [2012 (28) STR 510 (Tri.-Delh.) has referred to the earlier decision of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice on the ground that the service provided by the assessee would fall under the "Business Auxiliary Service" and, therefore, would be liable to pay service tax w.e.f. 16.06.20025. Taking note of the decision of the Bombay High Court in Indian National Shipowners Association Vs. Union of India - 2009 (14) STR 289 (Bombay), where it was held that introduction of a new entry and inclusion of certain services in that entry would presuppose that earlier there was no entry covering the said service. Accordingly, it was held : - " 21. In the instant case, the definition of BAS did not undergo any change when a new service 'in relation to mining' was introduced with effect from 1st June, 2007. The Department admits that with effect fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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