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TMI Blog2024 (7) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... arge the service tax under RCM? - judgments and board circular relied by the appellants not dealt upon - violation of principles of natural justice. HELD THAT:- Even though there is consolidated contract but since each activity has been prescribed separately and the rate for each activity was given separately, it is considered as separate activity undertaken by the appellant to perform. Therefore, the transportation activity appears to prima facie independent from the mining activity. The Adjudicating authority had no occasion to deal with the judgments and board circular relied by the appellants in their favour. Since, the issue involved is mixed question of law and fact, the fact of the present case needs to be verified and ensure that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the appellant have relied upon number of decisions, the learned Commissioner has not given any finding on the same that why the ratio laid down in the favour of the appellant is not applicable to the facts of the present case. He submits that the appellant have put forth the fact before the Learned Commissioner that they had already paid service tax on the excavation of mineral since provided to M/s. GMDC under the category of site formation and excavation of earth moving demolition services for the period up to 30.05.2007 and from 01.06.2007 onwards they have paid service tax on the same activity under the category of mining service. However, no finding has been given by the Learned Commissioner in the impugned order on the said point. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s. GMDC is not sustainable. He referred to the definition of mining service which was introduced from 01.06.2007. He also referred to the Board Circular No. 232/2/2006-CX.4 dated 12.11.2007. He submits that the circular clarifies that the activities like mineral, extraction and lifting them up to the pithead are essential integral processors and part of mining operation where the activity of handling and transportation of minerals from pithead to specified location within the mine/factory or for transportation outside the mine is declared as post mining activities. In the present case the appellant were awarded one single composite contract by M/s. GMDC for execution of three different activities namely (i) Excavation of Lignite and li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as there is no suppression of facts on the part of the appellant. Hence, the service tax cannot be demanded invoking proviso of Section 73 of Finance Act, 1994. He placed reliance on the following judgments:- Cosmic Dye Chemical vs. Collector Of Central Excise, Bombay 1995 (75) ELT 721 (SC) Tamil Nadu Housing Board vs. Collector 1994 (74) ELT 9 (SC) Cadila Laboratories Pvt Ltd vs. CCE 2003 (152) ELT 262 (SC) Pushpam Pharmaceuticals Company vs. Collector of Central Excise, Bombay 1995 (78) ELT 401 (SC) M/s. Continental Foundation Joint Venture Holding, Naphtha H.P vs. CCE , Chandigarh 2007 (216) ELT 177 (SC) Alumeco Extrusion vs. CCE 2010 (249) ELT 577 National Rifles vs. CCE - 1999 (112) ELT 483 SPGC Metal Industries Pvt Ltd vs. CCE - 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is considered as separate activity undertaken by the appellant to perform. Therefore, the transportation activity appears to prima facie independent from the mining activity. 4.2 We find that after passing the adjudication order in the present case much water has flown on the issue in hand and various forums have delivered judgments on the identical issue. All the judgments are based on the facts of individual case. The Adjudicating authority had no occasion to deal with the judgments and board circular relied by the appellants in their favour. Since, the issue involved is mixed question of law and fact, the fact of the present case needs to be verified and ensure that the same is matching with the fact of the judgments and board circu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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