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TMI Blog2024 (7) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... uestions of law for consideration:- i) Whether the Learned Tribunal has committed gross error of law by considering the services rendered by the respondent is "Mining Service" for the period 16.08.2002 to 31.10.2006 though the "mining service" came into effect on 01.06.2007 ? ii) Whether the services provided by the respondent prior to 01.06.2007 can be considered as Mining service or the said services would be considered as "(a) Business Auxiliary service; (b) "Cargo Handling Service; (c) "Site formation and clearance, excavation and earth moving and demolition services" ? iii) Whether the contents of the Circular dated 12.11.2007 has been fully appreciated by the Learned Tribunal or not? 2. We have heard Mr. K. K. Maity, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learance service and business auxiliary services and demanding service tax. The assessee by placing reliance on the work orders had established before the Tribunal that the services rendered by them was composite service and the Department was not justified in creating an artificial bifurcation. Furthermore, the assessee's specific case was that they entered into contracts with different owners of the mines which are composite and inseparable; all the mining contracts specified composite rates for the mining process comprising excavation and haulage of excavated minerals, dumping of hauled materials at specified locations and all inclusive rates were split up to identify cost for any specific activity along the mineral extraction chain. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07). Prior to this date, such activities, being part of mining operations itself are not subjected to service tax. Therefore, no service tax is leviable on such activities prior to the said date." 5. Thus, on facts that Tribunal has rightly appreciated the case of the assessee and granted relief with regard to invoking the extended period of limitation. We have seen the allegation in the show-cause notice and we find that except for the use of the words "omission and failure", "suppression of material facts", "with an intent to evade payment of service tax", the adjudicating authority has not brought out any facts to substantiate as to how there was an act of omission and failure on the part of the assessee to disclose the correct fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Toubro Limited reported in 2015 (39) STR 913 (SC). In the said decision, the Hon'ble Supreme Court referred to the decision in the case of Sabina Abraham. & Ors. Vs. Collector of Central Excise & Customs reported in 2015 (322) ELT 372 (SC). In this decision reliance was placed in the decision in the case of Partington vs A.G., (1869) LR 4 HL 100 at 122 wherein Lord Cairns stated: "If the person sought to be taxed comes within the letter of law he must be taxed, however great the hardship may appear to the judicial mind to be. On the other hand, if the Crown seeking to recover the tax, cannot bring the subject within the letter of law, the subject is free, however apparently within the spirit of law the case might otherwise appear to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the amendment brought in Section 65 (105) by way of amendment in Finance Act, 1994 with effect from 16.05.2008 by inserting a fresh entry namely Section 65 (105) (zzzzj). Further, it was contended by the Union of India that the period relevant in the said case was from 01.06.2007 to 15.05.2008 and that the amendment was brought in subsequently but yet, by taking recourse to Section 65 (105) entry No. zzzy, the members of the association are still liable to pay service tax. The contention was resisted by the respondent association therein contending that the service rendered by their members cannot be said to be any service in relation to mining of minerals, oil or gas and have placed before the Hon'ble Supreme Court the nature and scope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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