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The CESTAT held: The demand of service tax under 'site formation service' for June 2005 to May 2007 by culling out site formation charges from a composite mining contract is unsustainable. The alleged site formation activity was only incidental to the mining service, and demanding tax on a service not agreed upon lacks merit. The demand for short payment of service tax under mining service for June 2007 to September 2008 is unsustainable. The appellant had already paid service tax on the gross income by end of 2008-09. The demand for service tax under mining service for June 2007 to September 2008 on account of undervaluation is unsustainable. Enhancement of value based on cost of provision u/r 3(b) is inapplicable as there was no realization of consideration in kind. All three demands of service tax confirmed in the impugned order, along with interest and penalty, are set aside. The appeal is allowed.
The CESTAT held: The demand of service tax under 'site formation service' for June 2005 to May 2007 by culling out site formation charges from a composite mining contract is unsustainable. The alleged site formation activity was only incidental to the mining service, and demanding tax on a service not agreed upon lacks merit. The demand for short payment of service tax under mining service for June 2007 to September 2008 is unsustainable. The appellant had already paid service tax on the gross income by end of 2008-09. The demand for service tax under mining service for June 2007 to September 2008 on account of undervaluation is unsustainable. Enhancement of value based on cost of provision u/r 3(b) is inapplicable as there was no realization of consideration in kind. All three demands of service tax confirmed in the impugned order, along with interest and penalty, are set aside. The appeal is allowed.
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