2017 (9) TMI 1067

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....gaged in the activity of excavation of overburden and earthwork, and shifting of the same from mine pit to other areas within the factory. The appellant also removes the Limestone rock from within the mines and carries it to the nearest crusher, all within the factory areas of its customer. All these activities are covered by the Department after 01.06.2007 under the heading "mining services" and brought to the clutches of the service tax w.e.f. 06.08.2007. The appellant is paying service tax and the same is accepted by the Department under the heading "mining service". The dispute is before 01.06.2007 when the department also demanded service tax under the category of cargo handling service. Being aggrieved, the appellant has filed the pre....

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....of the appellant being engaged in loading of the mined lignite on to the trucks or railway wagons for transportation of the lignite to the destination, just loading of the mined lignite within the mining area into the trucks would not make this activity cargo handling service covered under Section 65(105)(zr). Moreover, the loading of mined lignite of the desired quality into the trucks referred to in Clause 4.2.1(c) of the agreement is a very small peripheral activity for which there is no separate payment and in the entire agreement, the thrust is on mining activity and the payment is also on the basis of the quantity of the lignite of the desired quality produced. Therefore, from the nature of the contract also, it cannot be said to be a....

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.... the value of "free supplies" should be included in the value of the service provided for levy of tax; and within its legislative competence, is an aspect that is speculative for the nonce and outside the purview of either the substantive appeals or the issue referred to us. In this view of the matter it is not necessary to consider the contention on behalf of the assessees that an interpretation that Section 67 of the Act enables or mandates inclusion of the value of goods and materials incorporated into construction services (whether provided by the service provider or as a free supplies by the service recipient) would render the legislative provision unconstitutional, since value of the goods incorporated being sale of goods would be lia....