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TMI Blog2024 (9) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... in Article 48 of the Constitution of India. It is also observed that the charges are collected in pursuance of the decision of the Hon ble Supreme Court. From the impugned order, it is observed that the adjudicating authority has considered the payment of NPV as a consideration for the 'Declared Service' as defined under Section 66E(e) of the Finance Act, 1944. The observation that the Government is tolerating the act of the appellant against a consideration is legally not sustainable inasmuch as one cannot envisage the situation as apprehended by the Department that by collecting NPV, the Government is tolerating the act of the appellant. The issue regarding taxability of the payment of NPV in the CAMPA Fund stands decided by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ression of facts with intention to evade the tax has been established in this case, penalty under Section 78 of the Finance Act, 1994 is not imposable on the appellant. The impugned order is set aside - appeal allowed. - HON BLE SHRI R. MURALIDHAR , MEMBER ( JUDICIAL ) And HON BLE SHRI K. ANPAZHAKAN , MEMBER ( TECHNICAL ) Shri Bipin Kumar , Chartered Accountant for the Appellant Shri Sourabh Chakravorty , Authorized Representative for the Respondent ORDER ORDER : [ PER SHRI K. ANPAZHAKAN ] M/s. Central Coalfields Limited, Kuju Area, Gidi Road, P.O.: Kuju, Jharkhand, PIN 825 316 (hereinafter referred to as appellant ) is engaged in the business of mining and dispatch of coal. For the purpose of mining of coal, the appellant sought forest c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of T.N. Godavarman Thirumulpad v. Union of India. The appellant submits that the NPV paid is not related any service provided or to be provided and hence the demand of service tax on this amount is not sustainable. 5.1. The appellant further submits that the issue is no more res integra as this Tribunal has already decided the issue in favour of the appellant in the case of M/s. Mahanadi Coalfields Ltd. (Orient Area) v. Commissioner of C.G.S.T. and C.Ex., Rourkela [Final Order No. 76176 of 2023 dated 13.07.2023 in Service Tax Appeal No. 75432 of 2022 CESTAT, Kolkata]. 5.2. Accordingly, the appellant prayed for setting aside the demands confirmed in the impugned order and allowing their appeal. 6. The Ld. Authorized Representative of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; means any activity carried out by a person for another for consideration, and includes a 'Declared Service'. Clause (22) of Section 65B of the Act defines 'Declared Service' as an activity carried out by a person for another for consideration and specified in Section 66E of the Act . The following activity has been specified in Section 66E(e) of the Act, as 'Declared Service'. 'Agreeing to the obligation to refrain from an act, or to tolerate an act or a situation, or to do an act' 7. From the impugned order, we observe that the Revenue has considered the clearance granted by Ministry of Environment, Forest and Climate Change for usage of the forest land falling under the said project for non forest purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes, its implications are felt at various spatial and temporal scales on account of possible loss of natural resources of the country. While developmental activities are essential for economic growth of the country, at the same time it is necessary to ensure that this development does not come at the cost of India's invaluable natural capital, particularly the forests. Therefore, a payment in the form of Net Present Value, Compensatory Afforestation Charges and other such site specific charges are required to be paid to make good the damage caused by such user agency. In the process, application for non-forestry use of forest land is made by the user agency to Ministry of Environment Forest, Govt. of India, and final approval for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the receipt of compensation are by operation of law. They are like the receipt of a compensation when one's land is acquired by the Government in public interest or the payment to a Government employee of an amount equal to the salary for unused leave at the time of his/her retirement. It is unthinkable to say that the land-owner has tolerated the acquisition of his land as per an agreement and charge service tax on the compensation. Equally unthinkable is to say that the Government employee has tolerated the non-sanction of leave during his service as per an agreement and in consideration, received the leave encashment at the time of retirement and to charge service tax on the amount received as leave encashment. These, cannot be ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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