TaxTMI 
TaxTMI 
2018 (7) TMI 1919
X X X X Extracts X X X X
X X X X Extracts X X X X
....ining rejects by mechanized operation at Thakurani Mines. 2. The Adjudicating Authority confirmed the demand of Service Tax alongwith interest and imposed penalty under Section 76, 77 and 78 of the Finance Act, 1994. The demand has been made under the category Of "Business Auxiliary Services" and "Cargo Handling Services" during the period 10.09.2004 to 31.3.2006. On appeal, the Ld. Commissioner (Appeals) allowed the appeal and set aside the adjudication order. 3. Being aggrieved by the impugned order, Revenue is in appeal before the Tribunal. 4. Heard both sides and perused the appeal records. 5. We find that the Lower Appellate Authority has discussed the issue and passed a detailed order. The same is reproduced below:- ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arya, Advocate appeared for the appellants. Department was represented by Sri H. S. Sahoo, Superintendent. Sri Sahoo reiterated the grounds adopted by the adjudicator for confirming the demand and other attendant liabilities. Sri Acharya took the plea that since mining services were categorized with effect from 22.05.2007, the service rendered by the appellants being classifiable as mining services could not have been classifiable under any other category prior to this date. Alternatively he pleaded that department having accepted the classification under the category of Site Formation Service & collected tax under that classification could not demand tax by classifying the same services under other categories. He laced reliance an Honourab....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w contract talks of transportation of ore from mine to factory and does not refer to any handling activity such as loading/unloading etc. the rate fixed for transport of ore on per metric ton basis may be inclusive of loading/ unloading involved. There is however no evidences that any handling charges are being collected separately in addition to the service charge for transportation. Under the circumstances it is not clear as to why this service has been done as cargo handling service on the basis of presumption and without any supporting evidence brought on record in the shape of relevant contract, bills etc. It appears that the adjudicator presumed existence of certain elements of earlier contract in the new one and proceeded to confirm ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....abilities is liable to be set aside on account of its being based on incorrect classification. I accordingly set aside and allow the appeal." 6. We also find that the Division Bench of the Tribunal vide its Final Order No. 76824-76825/2018 dated 23.10.2018 on similar facts, allowed the assessee's appeal and rejected the Revenue's appeal. 7. We find that the above decision of the Tribunal is squarely applicable to the facts of the present case. The relevant paragraph of the above decision of the Tribunal is reproduced below:- "7. The adjudicating authority has picked up two of the activities for charging service tax under the categories of "Business Auxiliary Service" for crushing of ore lumps as well as "Cargo Handli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Mining Services), which was made chargeable to service tax w.e.f 01.06.2007 only. The observations of the Tribunal in that case are extracted below: " 6.Hon'ble Apex Court in the case of Commissioner of C.Ex. & Cus., Kerala v. Larsen & Toubro Ltd. (supra), while deliberating on the issue of indivisibility of Works Contract, distinguished between 'Contracts Simplicitor' and 'Composite Works Contracts' in Para 24 of this case law as follows :- A close "24. look at the Finance Act, 1994 would show that the five taxable services referred to in the charging Section 65(105) would refer only to service contracts simpliciter and not to composite works contracts. This is clear from the very language of Section 65(105) which defines....