TaxTMI 
TaxTMI 
2015 (9) TMI 784
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.... has confirmed the demand against four Work Orders involving total Service Tax of Rs. 16,85,176/- and imposed equivalent penalty under Section 78, penalty @200/- per day under Section 76 and Rs. 1,000/- under Section 77 of the Finance Act, 1994. Hence, the Appeal No. ST/172/2008 is filed by the assessee/appellant. 3. The Revenue has come in appeal bearing No. ST/157/2008 against the same order-in-original on the ground that the ld. Commissioner has erroneously dropped the demand against two work orders/agreements viz. OMD/T-5/152, dated 20-1-2003. 4. Assailing the impugned order, the ld. Advocate for the appellant-assessee has submitted that the ld. Commissioner has wrongly observed that in executing the Work Order No. OMD/T-5/917, dated 18-3-2005, the services rendered by them was held to be in the nature of Business Auxiliary Service. He has submitted that the Appellant-assessee had not undertaken any work on the raw material or semi-finished goods and hence their activity cannot be construed as 'production or processing' of goods on behalf of the clients. Hence, its classification under the category of Business Auxiliary Service is erroneous. He submits that their ac....
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....The ld. AR has further submitted that Department has also filed appeal challenging the finding of the adjudicating authority in relation to the work Orders No. OMD/T-5/152, dated 20-1-2003 & OMD/T-5/256, dated 27-1-2006, that raising, transporting and calibration of iron ore from 'R' Block Area of Bhadrasai Mines, Roida would not attract Service Tax under the taxable category of 'site formation and clearance', excavation and earth moving and demolition service, and do not fall under the category of Mining Services as observed by the ld. Commissioner which become taxable w.e.f. 1-6-2007. Hence, the Order is bad in law to this extent. 6. Heard both sides and perused the records. We have carefully considered the observation and arguments advanced by both sides. Undisputedly, in both these appeals, the services/activities in dispute relate to six work orders, executed by the appellant-assessee. The said work orders are listed at para No. 5.6 of the impugned order. The ld. Commissioner while recording reasons in relation to work order No. OMD/T-5/152, dated 20-1-2003 and OMD/T-5/256, dated 27-1-2006 observed that the activities relate to the Mining activity which became taxable on....
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....n view of the foregoing discussion, I conclude that the activities of raising of iron ore at the mines owned by OMDC, by the noticees are restricted to raising/mining of iron ore without involving any production or processing services as envisaged under Section 65(19) of the Finance Act, 1994 and also within the scope of definition of taxable service under Section 65(105)(zzb) of the Act ibid and hence are not liable to Service Tax. In the result I hold that the noticee is not liable to pay any Service Tax on their activity of raising of iron ore during the period from 10-9-2004 to 3-10-2006". 6.1 The said observation is challenged by the Revenue on the ground that the services rendered by the assessee/appellant would fall under the scope of site formation service. We do not find merit in the contention of the Revenue as not supported by any evidence and acceptable sound basis. On the, other hand, the aforesaid observation of the ld. Commissioner arrived at on the factual analysis of the individual work orders, seems to be well reasoned and accordingly, we uphold the same. 6.2 Also, we find that while analyzing the work order (OMD/T-5/917, dated 18-3-2005), the ld. Comm....
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....or the appellant has submitted that present demand pertains to the period October, 2004 to October, 2006 and the show cause notice was issued to them on 24-5-2007. Therefore, a portion of the demand is barred by limitation. Also, he has submitted that since the issue is that of interpretation of law and conflicting views are expressed by different judicial fora, therefore, penal provisions are not warranted in the present case and it is a fit case for invoking Section 80 of the Finance Act, 1994. We find force in the said argument of the ld. Advocate, in view of the observation of the Tribunal in the case of Jai Jawan Coal Carriers Pvt. Ltd. (supra). This Tribunal has observed as : "7. Next comes, the question of limitation. The show cause notice dated 23-4-2009 is for the period from October, 2003 to March, 2008 and this demand has been confirmed by invoking extended period while the second show cause notice dated 15-10-2009 being for 2008-2009 period is within time. During the period of dispute, there were conflicting decisions on the issue involved inasmuch as in the case of Sainik Mining and Allied Services Ltd. and G.G. Coal Transport Ltd. v. CCE, Customs and Service Tax....