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TMI Blog2024 (5) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly, the learned Commissioner has rightly held the demand to be bad both on account of duplication and vagueness as well as hit by limitation. It is found that learned Commissioner has rightly observed that the appellant has not been put to proper notice seeking correct classification of services. Further, evidently, SCN dt.08.10.2014 covered the period up to 2010-11 under various heads, including mining service , GTA service , etc., which was issued less than 3 months prior to the present SCN dt.30.12.2014. Thus, Revenue was fully aware of the affairs of the appellant while issuing the previous SCN dt.08.10.2014 and hence, the department cannot take the plea in the subsequent SCN that the demand is with respect to some missed out services or category of service - the learned Commisisoner has rightly dropped the demand of Rs.9,68,42,681/-. Appeal allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... (including cess) and also annexed the calculation sheet. To avail the benefit of VCES, it was condition precedent that the appellant should pay at least 50% of the tax dues by 31.12.2013. As admittedly, appellant could not deposit 50% of the tax dues by 31.12.2013, recovery proceedings were inititated against the appellant company under Sec 110 of the Finance Act 2013. Such recovery was challenged by the appellant unsuccessfully. 8. Simultaneously, the department also proceeded to issue SCN dt.30.12.2014 for demanding tax as follows: Service Tax liability of VMICPL from 01.04.2011 to 31.12.2012 Rs.28,55,26,115/- Service Tax paid by VMICPL prior to 01.03.2013 (as per Ann- II) (by Challan) Rs.2,49,80,250/- Tax dues to be declared in VCES declaration Rs.26,05,45,865/- Tax dues declared in the VCES declaration Rs.19,93,75,679/- Tax dues short declared in VCES declaration Rs.6,11,70,185/- 9. Further, as per Annexure-III to the SCN, demanded aggregate tax of Rs.9,68,42,681/- jointly under the head 'Mining service' (waste handling charges from mine head to dump yard) and 'Cargo Handling service' for the period 10.04.2008 to 11.08.2010. 10. It appeared to Revenue tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challans and were not considering the amount paid by way of Cenvat credit, resulted in the aforementioned erroneous calculation. 13. The VCES declaration dt.31.12.2013 was rejected by Revenue by Order dt.27.07.2014 and thus, the appellant was automatically out of the amnesty scheme. Thus, raising the demand as aforementioned under Sec 112/ Sec 111 of the Finance Act 2013 under VCES is not justifiable and palpably wrong. Further, there was no case of short payment of tax as declared in the VCES declaration nor the declaration was substantially false. No additional turnover was found by the Revenue other than the turnover declared in the Annexures to the VCES declaration. No reason has been assigned in the SCN for not giving credit of the tax paid through Cenvat account of Rs.5,26,93,750/-. In due course, the learned Commissioner had accepted the tax dues declared by them as per the VCES and had finally issued recovery certificate No. CRT.01/2015-16 (ARC) dt.19.12.2015 for tax dues of Rs.17,46,70,858/-. The appellant declared these tax dues under the category of 'arrears' under the SVLDR Scheme, 2019 and as per the declaration, they had already paid the tax of Rs.8,99,43,147/-. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying the said activities under 'mining services'. Thus, the department had issued two notices within a span of three months invoking extended period and demanded service tax two times on same activity, same consideration during same period under two different classifications. The first SCN dt.08.10.2014 was adjudicated and the demand was confirmed with penalty vide OIO dt.17.10.2016 classifying the services provided to Nidhi Mining Pvt Ltd in the nature of transporation of overburden/ rejects from the mining head to the dump yard within the mining area under the head 'mining services'. The Adjudicating Authority further took notice that it is duplicacy of demand in the present SCN on comparison with the earlier SCN and also took notice that all the facts were already in the knowledge of Revenue at the time of issuing earlier SCN dt.08.10.2014, accordingly, was pleased to drop the demand. 18. With regard to the demand of service tax of Rs.9,68,42,681/-, it was observed that the amount pertains to the period 2009-10 to 2010-11 under Sec 73(1) of the Act, invoking extended period of limitation. After considering the submissions of the appellant, particularly that the demand raised in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance with the VCES, 2013. It is also urged that in the present SCN, demand was raised with respect to services provided to some other parties also relating to the period covered by the earlier SCN viz., RK Mining Co., Hind Traders, Mehaboob Transport Company, Balaji Minerals, etc. The services provided to various parties are classifiable under 'mining services' or 'SOTG services' or 'site formation & clearance, excavation and earthmoving and demolition service'. It is further urged that though the SCN proposed a particular classification, nothing prevents the Adjudicating Authority from examining the activity and classifying under different head of service. However, the decision of learned Commissioner in dropping the demand by holding that confirming the demand under a different classification not proposed in the SCN amounts to travelling beyond the SCN, is erroneous and not legal and proper. In the given context, as the learned Commissioner found that the services involved were indeed taxable service, however, classifiable under different classification, there was no bar on him to confirm the demand of tax as it would enable recovery of tax dues under VCES. Reliance is placed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the demand raised as lumpsum with reference to Annexure-III to the SCN is vague. Accordingly, we hold that learned Commissioner has rightly held the demand to be bad both on account of duplication and vagueness as well as hit by limitation. We further find that learned Commissioner has rightly observed that the appellant has not been put to proper notice seeking correct classification of services. Further, evidently, SCN dt.08.10.2014 covered the period up to 2010-11 under various heads, including 'mining service', 'GTA service', etc., which was issued less than 3 months prior to the present SCN dt.30.12.2014. Thus, we find that Revenue was fully aware of the affairs of the appellant while issuing the previous SCN dt.08.10.2014 and hence, the department cannot take the plea in the subsequent SCN that the demand is with respect to some missed out services or category of service. We hold that the present SCN dt.30.12.2014 is hit by the ruling of Hon'ble Supreme Court in the case of Nizam Sugar Factory (supra). We also examined the ruling relied upon by the Revenue and find that the same do not apply to the facts of the present case. Accordingly, we hold that the learned Commisison ..... X X X X Extracts X X X X X X X X Extracts X X X X
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